Supreme Court of WA|2004-07-02|Before: Scott J, Smith J

Re Smith; Ex Parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 (2 July 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE SMITH; EX PARTE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA (NO 3) [2004] WASC 157

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA against BRIAN MILLWOOD SMITH

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law - Confiscation of property - Declaration of confiscation pursuant to s 30 Criminal Property Confiscation Act 2000 (WA) - Service of notice out of jurisdiction - Whether requirements of s 46 complied with

Director of Public Prosecutions for Western Australia v Hafner [2004] WASC 32

1 ROBERTS-SMITH J: This is an ex parte notice of motion for a declaration, pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) ("the Confiscation Act" or "the Act") that certain property has been confiscated under section 7(1) of that Act. The matter has been the subject of various applications in the present proceedings, two of which have been most recently dealt with by me in decisions delivered on 30 June 2004: Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) [2004] WASC 145 and Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147 respectively.

2 The property consists of funds standing to credit in Westpac Bank account number 36-0916, in the name "ASIC Welcome Stranger Mining Co (NL Trust Account)" and held for Centurion Trust Co Ltd as trustee for the Gold Coast Trust.

3 The situation is that a freezing order was made in respect of the funds by Scott J on 14 November 2003. That freezing order was granted on the basis that the DPP had applied for an examination order in relation to the property pursuant to s 43(1)(b) of the Confiscation Act, and that the DPP was likely to apply against Brian Millwood Smith for a crime used property substitution declaration and a criminal benefits declaration within 21 days after the making of the freezing order (s 43(3)(b) and (c) of the Confiscation Act).

4 Section 46 of the Act requires that as soon as practicable after a freezing order is made, the applicant for the order must arrange for a copy of it and a notice which complies with s 46(6) of the Act, to be served personally on any person who is, may be or claims to be, an interested party. The term "interested party" is defined in the Act, in relation to frozen property, to mean a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property.

5 The notice pursuant to s 46(6) must:

(2) advise the recipient that unless an objection is filed and the Court specified within 28 days after the date of service of the notice, the property described in the freezing order may be confiscated automatically under the Act;

(3) inform the recipient that they may be eligible to file an objection to the confiscation of the property; and

(4) give details of the recipient's obligations under s 47 of the Confiscation Act.

6 Section 47 stipulates that a person served with a copy of the freezing order pursuant to s 46 and the s 46(6) notice, must give a statutory declaration to the DPP within seven days after service. The purpose of the statutory declaration is to inform the DPP whether or not there is, or may be, some other interested party and the scheme of the Act requires that if such notice is given to the DPP then the requirements of giving notice extend also to that party.

7 The freezing order made by Scott J on 14 November 2003 was served by the DPP on the Australian Securities and Investment Commission and Westpac Banking Corporation later that same day. I refer to the affidavit of Ms Humphries sworn 24 May 2004. The statutory declaration of an officer of ASIC provided to the DPP on 21 November 2003 identified a number of persons or entities who may be, or may claim to be, interested parties. They were Centurion Trust Co Pt Ltd ("Centurion"), Brian Millwood Smith, the British Heart Foundation situated in London, England and the Imperial Cancer Research Fund situated in London, England. This too appears from the affidavit of Ms Humphries.

8 According to the material before me, which I accept, Brian Millwood Smith was served with a copy of the freezing order on 24 November 2003 and he submitted a statutory declaration to the DPP on 27 November 2003 naming Centurion as an interested party in the frozen property. Following that information the DPP sought leave, pursuant to O 10 r 7 of the Rules of the Supreme Court, to serve the freezing order and s 46(6) notice on interested parties situated outside the jurisdiction in the United Kingdom including, but not limited to, Centurion, the Imperial Cancer Research Fund and the British Heart Foundation.

9 On 9 January 2004 Heenan J gave the DPP leave to serve a copy of the freezing order and the s 46(6) notice on any person in the United Kingdom who is, may be or claims to be, an interested party within the meaning of the Act, including Centurion. At the same time, Heenan J ordered that the period of 28 days prescribed by s 79, within which an objection to the freezing order may be filed, be extended to 60 days from the date of service without prejudice to any right of any person to apply for an extension under the Act. That extension of time was expressly authorised by s 79(4).

10 On 28 January 2004 the Viscount's Department in Jersey served a copy of the freezing order and the s 46(6) notice on Centurion in Jersey in the Channel Islands. That is evidenced by the affidavit of Paul Herbert William Stevens sworn 29 January 2004 and filed on 24 May 2004. It appears from that affidavit that in addition to the freezing order and s 46(6) notice the order for leave for service outside the jurisdiction made by Heenan J on 9 January was also served, and that included, as par 2, his Honour's extension of the 28 days to the 60 days from date of service for the filing of an objection.

11 On 28 January 2004 the British Heart Foundation and the Imperial Cancer Research Fund were served a copy of the freezing order and the s 46(6) notice. However, on 29 January 2004 Centurion's solicitors, Messrs Bennett and Co, informed the DPP that the order of Heenan J permitting service outside the jurisdiction was ineffective insofar as it related to Centurion, because Centurion is domiciled in Jersey, which is not part of the United Kingdom.

12 It is not necessary for me to canvass here what followed thereafter. Reference has been made to that in the two judgments to which I have already referred, delivered on 30 June. Suffice to say that the other material before me establishes that on 6 February 2004 the Cancer Research Foundation of the United Kingdom filed a statutory declaration stating that it was not aware of any person who is, may be or might claim to be, an interested party in respect of the property. The DPP has not received any further declarations.

13 A search of the registry of this Court shows that no objection has been filed by any interested party, nor has the DPP been served with any notice of objection within the meaning of the Act.

14 Following the raising by Centurion of the issue that service had not been effective, because the grant of leave outside the jurisdiction had not been effective, there were further applications made, in particular an application by Centurion seeking to set aside the freezing order made by Scott J on 14 November. I have already dealt with that application.

15 The Court has a very limited judicial discretion in relation to applications for declarations that frozen property has been confiscated under the Act. Nonetheless, the determination of the matters set out in the Confiscation Act for the making of a declaration under s 30 does still require the exercise of a judicial discretion. However, the other aspect of that is that once the Court has been satisfied the statutory requirements have been met, the Court must make a declaration.

16 Given the draconian nature of the legislation, strict compliance with its requirements is required. The purpose, clearly, is to ensure a potential interested party knows they are required to file a statutory declaration and has the opportunity to file a notice of objection.

17 It is clear that Centurion did know of the freezing order and its terms, and also the extension of time for the filing of the notice of objection granted by Heenan J. All that is clear enough from the submissions made by counsel for Centurion on the various applications, with which I have already dealt.

18 The notice served on Centurion on 16 March 2004 referred to a period of 28 days for the filing of a notice of objection. There was no attached order, nor other reference, to the extension to 60 days. That appears to have been the result of some misapprehension on the part of the DPP as to the effect of the order made by me on 19 February 2004, giving the DPP leave to serve outside the jurisdiction in Jersey in the Channel Islands, and extending the time in which Centurion was required to file a statutory declaration pursuant to s 47 to 30 days from the date of service - an extension of time, which I later, on further submissions and further reflection, concluded I had no jurisdiction to grant.

19 Nonetheless, the orders made by me operated only to the limited extent which I indicated at the time and as reflected in the extracted order. They were otherwise not intended to, nor did they, affect the previous orders made by Heenan J. Accordingly, his Honour's order extending the time for objection to 60 days still stood. Under those circumstances it seems to me that the notice served on Centurion on 16 March, referring only to 28 days, did not comply with the requirements of the Act, because the statutory period of 28 days had been replaced by the 60 day extension granted by Heenan J.

20 That required service of a notice stating the 60 day period for service of the notice of objection. Were that the only service, or matter, upon which the DPP could rely I would not be prepared to make the declaration sought, because as I have said, it seems to me that with draconian legislation of this kind, strict compliance with the requirements of the legislation must necessarily be demonstrated before a declaration can properly be made. However, that is not quite the situation here.

21 The fact of the matter is that the service effected on 28 January 2004 was effective. That service did include the order, or notice of the order, of Heenan J extending the time for objection to 60 days. (When I say service was effective, what I mean by that is not effective to attract or exercise the jurisdiction of the Court over Centurion, a matter with which I have already dealt in my earlier reasons for decision, but effective in terms of complying with the statutory requirements). That being so, the fact of the matter is that the 60 day time limit for Centurion to file a notice of objection has well expired and no such notice has been filed.

22 Furthermore, it is also clear, from what has transpired, that Centurion was well aware of the freezing order from on or about 14 November 2003, so even were it to be assumed that neither service on 28 January nor 16 March 2004 was effective service in the sense that I have mentioned, s 79(3) required notice of objection within 28 days from Centurion becoming aware of the order. To the same effect, Centurion was also well aware, again based on what was said by counsel for Centurion in the course of these proceedings, from the date it was made, of the order made by Heenan J extending time for objection to 60 days.

23 It is apparent Centurion has made a deliberate choice not to object. Centurion has chosen to take the risk that its attempt to have the freezing order set aside by a collateral challenge to the making of it by Scott J in the first instance would fail. It has failed.

24 Under the circumstances, I am satisfied that the statutory preconditions for the making of a declaration under s 30 have been met and I will make the declaration. There will be an order in terms of par 1 of the ex parte notice of motion filed on 18 May 2004.

Property Confiscation Act 2000

Director of Public Prosecutions for Western Australia v Hafner

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Judgment (36 paragraphs)

Re Smith; Ex Parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 (2 July 2004)

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