RE CRIMINAL PROPERTY CONFISCATION ACT 2000; EX PARTE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2017] WASC 246 (17 August 2017)

Last Updated: 24 August 2017

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE CRIMINAL PROPERTY CONFISCATION ACT 2000; EX PARTE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2017] WASC 246

CORAM : ALLANSON J

HEARD : 17 AUGUST 2017

DELIVERED : 17 AUGUST 2017

FILE NO/S : CPCA 20 of 2017

MATTER : Sections 7(1) and 30 of the Criminal Property Confiscation Act 2000

Freezing Notice Number WAPFN140051

EX PARTE

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Plaintiff

Catchwords:

Criminal Property Confiscation - Freezing Notice - Service cut-off date - Declaration of confiscation - Turns on own facts

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 7(1), s 30, s 36, s 37, s 46, s 47, s 79(2), s 79(3), s 150

Result:

Declaration granted

Category: B

Representation:

Counsel:

Plaintiff : Mr T A Staples

Solicitors:

Plaintiff : Director of Public Prosecutions (WA)

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

ALLANSON J:

(This judgment was delivered extemporaneously on 17 August 2017 and has been edited from the transcript.)

1 The plaintiff has applied for a declaration pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) that property described in the application has been confiscated. These are my reasons for making that declaration. In these reasons, all references to legislation are to the Criminal Property Confiscation Act.

2 The primary evidence in the application is an affidavit of Sherri Lee Stacey, sworn 28 April 2017. Ms Stacey attaches relevant documents including the freezing notice and the statutory declarations described below.

3 On 25 April 2014 a justice of the peace issued a freezing notice pursuant to s 34 for property described in the schedule to that notice. The property included four sums of cash.

4 The freezing notice was served pursuant to s 36. On 25 April 2014, it was served on Alan David Walsh (the person from whom the cash had been seized). On 6 May 2014, the freezing notice was served on Desmond Paul Patrick Walsh and Marie Ellen Walsh. On 7 May 2014 it was served on the Australian and New Zealand Banking Group Ltd.

5 A person who is served with a copy of a freezing notice under s 36 must give a statutory declaration to the officer in charge of the police station specified in the notice within seven days after service: s 37(1), s 37(2). The statutory declaration must state the name and, if known, the address of any other person who is, or may be, or claims to be, an interested party. If the declarant is not aware of any such person, the declaration must make a statement to that effect: s 37(3).

6 The ANZ Bank must have had earlier notice, because it provided a statutory declaration, dated 1 May 2014, relating to some of the property.

7 Alan Walsh did not provide a statutory declaration. Desmond Walsh and Marie Walsh each made declarations, dated 9 May 2014, in which they claimed no interest in the cash, and identified each other and the ANZ Bank as parties having an interest in two pieces of land that were also subject to the freezing notice.

8 If any of the persons served with the freezing notice wished to object to confiscation, they were required to file their objection within 28 days of being served, or any further time allowed by the court: s 79(2). By s 79(3), anyone not served was required to file an objection

(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.

9 By s 7(1), frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut-off date for the property.

10 The term 'service cut-off date', in relation to property subject to a freezing notice, is given the following meaning by s 150:

For the purpose of determining when frozen property is confiscated under section 7, the service cut-off date is -

(a) for property frozen under a freezing notice - the date of the last day on which a copy of the freezing notice was served on anyone under section 36(4).

11 Section 36(4) applies where the applicant becomes aware that any other person is or may be or claims to be an interested party, as a result of information in a statutory declaration given in accordance with s 37 by a person who was served with a copy of the freezing notice under s 36(1). On a literal interpretation, s 36(4) does not apply where no-one has been identified as a possible interested party other than those served under s 36(1). Under s 150, there would be no service cut-off date.

12 In Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97 [24], [103] the court considered the relevantly indistinguishable scheme in pt 4 div 3, for confiscation of property frozen under a freezing order. Buss JA suggested, as a preliminary view, a construction of s 150, in the context of s 7, s 46 and pt 6 (objections to confiscation), that would give practical operation to the scheme constituted by those sections: if, after a statutory declaration has been given in accordance with s 47, it is unnecessary to serve any person or persons under s 46(4), the service cut-off date is the date on which the statutory declaration was given [103]. Heenan J applied that approach to s 36 and s 37 in Director of Public Prosecutions (WA) v Thornley [2014] WASC 440 [8]. The plaintiff, in written submissions, also refers to an unpublished decision by BanksSmith J in Director of Public Prosecutions v Yik To Ng and Pak Cheong Cheung (12 December 2016). I have also followed that course in a previous unreported judgment.

13 I do not know whether the question has ever been properly argued: these applications are, in my experience, generally dealt with ex parte. I believe, however, that I should continue to follow the earlier decisions for consistency of approach.

14 The freezing notice has since been cancelled in part, so that it now is only for the cash. No one filed any objection to the confiscation of the cash. Accordingly, the conditions for the operation of s 7(1) have been met: the service cut-off date is 7 May 2014; 28 days have passed after the service cut-off date for the property and no objection has been filed to the confiscation of the property. The freezing notice was filed in accordance with s 36(6)(a) on 28 April 2014.

15 By an originating motion filed on 10 May 2017, the plaintiff seeks a declaration that the property the subject of the freezing notice has been confiscated under s 7. If the court finds that the property described in the application has been confiscated under s 7, the court must make a declaration to that effect: s 30.

16 I am satisfied that the property has been confiscated and accordingly will make the declaration sought.