The State of Western Australia v Bowers - [2009] WASC 136

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

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

CORAM: TEMPLEMAN J

HEARD: 8 MAY 2009

DELIVERED : 8 MAY 2009

PUBLISHED : 19 MAY 2009

FILE NO/S: CPCA 96 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AARON DAVID BOWERS
Respondent

FILE NO/S :CPCA 108 of 2008

BETWEEN :AARON DAVID BOWERS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S :CPCA 109 of 2008

BETWEEN :JILLIAN VALERIE BOWERS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Proceeds of crime - Offence committed by respondent on property not owned by respondent - Respondent's property frozen pending application for a crimeused property substitution declaration - Whether declaration should be made - Distinction between crimeused property and criminal use of such property - Distinction between positive use of property and act or omission on property

Proceeds of crime - Objections to freezing of property - Whether release to innocent objector who is coowner of the substituted property on grounds of hardship

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 22, s 82, s 146, s 147

Result:

Application dismissed
Freezing order set aside

Category: B

Representation:

CPCA 96 of 2008

Counsel:

Applicant: Mr M Seaman
Respondent: Mr L M Levy SC, Mr T F Percy QC & Mr S Nigam

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: S C Nigam & Co

CPCA 108 of 2008

Counsel:

Applicant: Mr L M Levy SC, Mr T F Percy QC & Mr S Nigam
Respondent: Mr M Seaman

Solicitors:

Applicant: S C Nigam & Co
Respondent: Director of Public Prosecutions (WA)

CPCA 109 of 2008

Counsel:

Applicant: Mr L M Levy SC, Mr T F Percy QC & Mr S Nigam
Respondent: Mr M Seaman

Solicitors:

Applicant: S C Nigam & Co
Respondent: Director of Public Prosecutions (WA)

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

Director of Public Prosecutions for Western Australia v White [2009] WASC 62
Lamers v State of Western Australia [2009] WASC 3

TEMPLEMAN J: This is a notice of motion brought by the Director of Public Prosecutions for Western Australia (DPP) who seeks a crime‑used property substitution declaration under s 22 of the Criminal Property Confiscation Act 2000 (WA) (the Act): a declaration that property owned by the respondent is available for confiscation instead of crime‑used property, on the ground that crime‑used property, which is property at Beechboro specified in the summons, is not available for confiscation by reason that the respondent does not own that property; and that the respondent made criminal use of the Beechboro property.
I have before me also, objections by the respondent and his wife to the DPP's motion.
The application arises out of offences committed by the respondent at the Beechboro property, to which he was convicted on his own pleas of guilty. There were three offences: three counts of sexually penetrating a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code (WA). Each of those offences was an offence under Chapter XX or XXXI of the Criminal Code.
The offences were committed at the complainant's home; or at least the home which was owned by the complainant's father. It was not owned by the respondent. That being so, a freezing order was made in respect of the respondent's property, under s 43(3)(c) of the Act, on the ground that the DPP advised the court that an application was likely to be made against the respondent for a crime‑used property substitution declaration within 21 days of the order.
Section 21 of the Act permits the DPP to apply to the court for a crime‑used property substitution declaration against a person.
Section 22 provides that on the hearing of an application under s 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; and
(b)it is more likely than not that the respondent made criminal use of the crime‑used property.
There are therefore two considerations arising under s 22: whether crime‑used property is available for confiscation; and whether it is more likely than not that the respondent made criminal use of the property.
It is not in dispute in the present case that the Beechboro property was crime‑used. That is so, because, under s 146(3) of the Act:
[A]ny property in or on which an offence under Chapter XXII or XXXI of The Criminal Code is committed is crime‑used property.
And as I have already mentioned, the offences in this case were offences under those chapters of the Criminal Code.
There is equally no doubt that the crime‑used property, that is the property at which the offence was committed, is not available for confiscation because it was not owned or controlled by the respondent.
The question then, is whether it is more likely than not that the respondent made criminal use of the crime‑used property.
In order to answer that question, I turn, first, to the glossary to the Act which provides:
criminal use, in relation to a person and property, has the meaning given in section 147.
I turn then, to s 147, which provides:
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. (emphasis added)
I emphasise the last part of s 147 to make the point that it is not simply use or intended use of the property which constitutes 'criminal use', but use or intended use in a particular way. That is, in a way that brings the property within the definition of crime‑used property.
Turning again to the glossary: 'crime‑used' in relation to a property is said to have the meaning given in s 146. And in s 146, there are three bases on which a property may be described as crime‑used, as set out in s 146(1)(a), (b) and (c). They are:
(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. (emphasis added)
It is clear that paragraphs (a) and (b) are concerned with the use of the property. In (a), the focus is on use or intended use, directly or indirectly in connection with the commission of the offence or facilitating it; and in (b), on use for storing property acquired unlawfully in the course of the commission of a confiscation offence. These are positive uses of the subject property.
But (c), it seems to me, is in a different category. It does not refer to a use, but to any act or omission that was done or omitted to be done.
In other words a distinction is drawn between property being actively used for a purpose identified in (a) and (b), and property on which something - an act or omission - was done or omitted to be done.
It seems to me, therefore, that when one goes back to s 147, which focuses on use in a way that brings property within the definition of crime‑used property, only the use referred to in s 146(1)(a) or (b) brings the property within the definition of crime‑used property. It follows, I think, that if an act or omission was done or omitted to be done - and no more than that - in relation to the property, then there would not be criminal use of that property even though the property was crime‑used.
The DPP's case is that the mere fact that the act or omission was done or omitted to be done at the crime‑used property, has the result that the property was used criminally. In my view, however, that is not the proper construction of the Act because it does not give sufficient recognition to the distinction between crime‑used property and the criminal use of crime‑used property.
In my view, that distinction is not only apparent from s 146 and s 147, but also from s 22, to which I referred earlier. I accept the submission of senior counsel for the respondent that s 22(3) reinforces that conclusion because it provides that 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. In other words there can be a rebuttal of the presumption that property which is crime‑used has been used criminally.
In the present case, having regard to the somewhat opportunistic circumstances in which the offences were committed, and the fact that they were committed on the ground in the shed which formed part of the Beechboro property, I do not think it could be said that the property was being 'used' in any relevant way for the commission of the offences.
In reaching this conclusion, I have been greatly assisted by the judgment of Jenkins J in Director of Public Prosecutions for Western Australia v White [2009] WASC 62. There, the DPP sought a crime‑used property substitution declaration in respect of the property of the respondent, who had committed an offence of wilful murder. The respondent, who was armed with a revolver, had pursued his victim, firing as he ran. These events took place at a property belonging to another person. The victim's escape was impeded by locked gates at the entrance to the property. The respondent shot the victim as he (the victim) climbed over the gate. However, the fatal shots were fired outside the property, when the victim was lying on the ground [21].
Jenkins J held that:
I find 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 wilful murder. The locked gates prevented [the victim] from leaving the premises or the verge on which he ultimately died, prior to the final shot being fired [46].
Then, after considering the construction of the Act, her Honour said:
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. Thus, I am not satisfied that s 147 has been made out. Consequently, I am not satisfied, for the purposes of s 22(1)(b) that it is more likely than not that the respondent made criminal use of the crime‑used property and I decline to make the CPSD sought by the applicant [109].
In the present case, I consider that the link between the Beechboro property and the commission of the offences is equally tenuous. As Jenkins J said in White:
… almost any act constituting the commission of an offence requires some connection with land, if only as something to use to stand on when committing the act [49].
I agree. Much more is required before it can be said that criminal use has been made of the relevant property.
For all these reasons, I conclude that I should not make the declaration the DPP seeks.
That being so it is not necessary to consider the objections. But in case I am wrong, I will refer to s 82 on which the objection is brought by the respondent's wife. I should say that the DPP seeks a substitution declaration only in relation to the respondent's interest in the property which he and his wife own as joint tenants, not in relation to her interest. Her objection, under s 82 of the Act, is to confiscation of the respondent's interest.
Section 82 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.
I accept that all those criteria are satisfied on the uncontested evidence presently before me: particularly having regard to the state of health and financial position of the respondent's wife and their minor children.
In Lamers v State of Western Australia [2009] WASC 3, I held that s 82 was available only where a freezing notice or freezing order was made on the ground that the property was crime‑used: it did not apply if the freezing order was made on some other ground. In that case, the property was frozen on the ground that the offender had been declared a drug trafficker.
Senior counsel for the present objector, as I will refer to her, points out that if the offence had been committed in the respondent's own home, then the satisfaction of the s 82(3) criteria would be likely to result in the freezing order being set aside.
However, if the section is to be applied strictly, the objector would be denied relief, simply because the offence was not committed on the respondent's property but on property belonging to someone else. That, it is submitted, would be an extremely unjust result, given that s 82 is intended to protect innocent parties, as is the objector here.
In my view, that is a compelling consideration. I therefore think that if my primary reasons were wrong, I should hold that where s 82 refers to crime‑used property, the legislature must have intended it to apply also to property which is substituted for crime‑used property, thereby avoiding what would otherwise be an unjust result.
If I am wrong in all those matters, then clearly I would have to make a declaration and fix the value of the Beechboro property. I would do so by reference to the undisputed evidence of the valuer, Paul Major, to the effect that the value of the Beechboro property as at the date of the offence was $415,000.
But for the reasons set out above, I consider that the DPP's application should be dismissed and the freezing order set aside.