MATTER : Sections 41 and 57 of the Criminal Property Confiscation Act 2000

Director of Public Prosecutions (WA) against Brian Millwood Smith

Procedure - Extension of time - Property frozen in criminal proceedings - Statutory provision for confiscation of frozen property in absence of objection - Statute also providing that objection be made within 28 days - Whether application to extend time can be granted

Criminal Property Confiscation Act 2000 (WA), s 7, s 79, s 102

Supreme Court Act 1935 (WA), s 21

1 TEMPLEMAN J: On 2 July 2004, Centurion Trust Company Ltd (Centurion) applied by chamber summons for an extension of time in which to file an objection to the confiscation of property which had been frozen under a freezing order made by Scott J on 14 November 2003, pursuant to s 43(1)(b) and s 43(3)(b) and (c) of the Criminal Property Confiscation Act 2000 (WA) (CPCA).

2 Centurion's application is made under s 79 of the CPCA. That section provides that a person who wishes to file an objection to the confiscation of frozen property must do so within 28 days after service on him of the freezing notice or order; or (if he has not been served) within 28 days after the day on which he became aware (or could reasonably be expected to have become aware) that the property was frozen. However, the court has power to extend the time for filing an objection and may do so even after the relevant period has expired: s 79(4).

3 By s 7(1) of the CPCA, if no notice of objection to the confiscation of the property is filed 'on or before the 28th day after the service cut off date' the property is confiscated automatically.

4 Centurion is registered and domiciled in Jersey in the Channel Islands. It is the trustee of a trust known as the Goldcoast Trust. On 4 June 1998, the Australian Securities and Investments Commission (ASIC) made orders pursuant to s 73 of the Australian Securities Commission Act 1989 (Cth) restraining Centurion from voting or dealing with certain shares it held as a trustee.

5 Subsequently, the orders were varied to permit Centurion to sell the shares on the condition that the proceeds of sale - amounting to some $3.5 million - were deposited in an ASIC trust account. That is the property which was frozen by order of Scott J on 14 November 2003.

6 In a judgment delivered on 2 July 2004, Roberts-Smith J held that on 28 January 2004, the Viscount Department in Jersey had served a copy of the freezing order on Centurion in Jersey. His Honour held also that Centurion 'was well aware of the freezing order from on or about 14 November 2003': Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 [10], [22]. However, rather than filing a notice of objection, Centurion attempted to have the freezing order set aside by what Roberts-Smith J referred to as 'a collateral challenge'.

7 It is not necessary for present purposes to recite the substance or history of the challenge: only that it failed. It is sufficient to note that on 2 July 2004, Roberts-Smith J made a declaration, pursuant to s 30 of the CPCA, that the property had been confiscated: in essence, because Centurion had not filed an objection.

8 On 16 January 2008, the Court of Appeal granted Centurion leave to appeal against the decision of Roberts-Smith J but dismissed the appeal: Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6.

9 I assume that Centurion's chamber summons dated 2 July 2004 was prompted by the decision of Roberts-Smith J given on that day.

10 The chamber summons came before Roberts-Smith J on 22 October 2004 and was adjourned, pending the decision of the Court of Appeal to which I have referred above. The parties were given liberty to apply on seven days notice thereafter. The present application is brought pursuant to that part of the order.

11 The application is opposed by the Director of Public Prosecutions (DPP) on the ground that s 79 has no application once property has been confiscated. It is submitted that such property is no longer properly described as frozen property.

12 That was the conclusion reached by Groves DCJ in Director of Public Prosecutions for Western Australia v Le [2006] WADC 101. His Honour said:

Section 79(1) CPCA provides that 'a person may file an objection to the confiscation of frozen property' (underlining added). Pursuant to s 3 CPCA the Glossary to the CPCA provides (materially) that: 'frozen', in relation to property and in relation to a ... freezing order, means subject to the ... freezing order. This is to be contrasted with the definition of 'confiscated'. The Glossary provides that: 'confiscated', in relation to property, means confiscated under ss 6, 7 or 8. Accordingly the scheme established by the CPCA expressly distinguishes between property that is 'frozen' and property that is 'confiscated' [22].

13 Counsel for Centurion sought to avoid this conclusion on two grounds. He submitted first, that because s 79(4) of the CPCA permits the court to extend the time for filing an objection 'even if the time for filing the objection has expired', the Parliament must have contemplated that the time could be extended beyond the point at which automatic confiscation took place. Counsel sought to draw an analogy with a springing order, on the basis that time for compliance with such an order may be extended even after the order has been executed.

14 In my view, however, the analogy is valid only for so long as property remains frozen. Thereafter, the analogy falls foul of the principle that s 79 is not applicable to property which has been confiscated.

15 Section 85 of the CPCA entitles a person to apply to the court for the release of property which has been confiscated under s 6 or s 7. However, such an application must be made

within 28 days after the person became aware, or can reasonably be expected to have become aware, that the property has been confiscated.

16 Unlike s 79, there is no provision in s 85 for the 28-day period to be extended. This provides further support for the proposition that the Parliament intended frozen and confiscated property to be treated differently.

17 Counsel for Centurion submitted secondly that the court has an inherent jurisdiction, arising under s 102 of the CPCA and s 21(3) of the Supreme Court Act 1935 (WA), to extend time if, in effect, the interests of justice so require. Section 102(1) of the CPCA provides:

Proceedings on an application under this Act are taken to be civil proceedings for all purposes.

18 In my view, this provision does not assist Centurion. I think it is intended to apply to the disposition of an application brought under the CPCA. The Parliament has not prescribed the procedures to be followed but is content to allow the court to adopt the procedures set out in the rules made under s 21(3) of the Supreme Court Act, and the practice which has developed in the application of those rules.

19 However, the ambit of the practice and procedure must be constrained by any relevant statutory parameters. Thus, general rules which permit the court to extend time for making an application, cannot be used beyond the limits set by a provision such as s 79 of the CPCA. Put another way, the rules are to apply to proceedings 'on an application'. The rules cannot provide a basis for permitting an application to be made which is proscribed by the CPCA: Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, 16.

20 Counsel for Centurion relied on the decision of the High Court in Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486: and in particular, the following passage:

The Act, as remarked earlier in these reasons, is draconian in its operation and complex in various of its provisions. There is not readily to be implied a denial of the powers of the Supreme Court when making or varying a freezing order to mould its relief to permit the use of funds to obtain legal assistance [50].

21 In Mansfield, the majority held also that:

[W]ithin the authority conferred by s 43 of the Act, the Supreme Court had the power (albeit not the duty) to require the provision of an undertaking and, if this was not offered or was offered in unsatisfactory terms, the Supreme Court was at liberty to refuse the freezing order sought by the DPP [46].

22 In my view, this decision does not assist Centurion. It provides examples of the way in which orders may be moulded. However, orders can be made only within the jurisdiction arising under the CPCA. The decision does not provide any basis for enlarging the court's jurisdiction in a way which is contrary to the express terms of the CPCA.

23 The 'collateral challenge' to the freezing order included a submission that the court had no jurisdiction to make it. Counsel for Centurion submitted, in substance, that it was wrong in principle for frozen property to be confiscated automatically while Centurion's objection to jurisdiction remained outstanding. Counsel submitted:

[I]t's a legitimate part of comity of laws between nations to allow parties to object to the jurisdiction limits being exceeded by one country's laws in relation to the operation of an organisation domiciled in the Channel Islands (ts 320).

24 I do not accept that counsel's reference to 'comity of laws between nations' is appropriate. This court has every respect for the laws of the Channel Islands. However, the court is not attempting to exercise some extra-territorial jurisdiction. As Martin CJ observed ([2008] WASCA 6):

[A] freezing order operates in respect of property, rather than persons. The property in question was situated in Western Australia [55].

25 Centurion's submission that the court had no jurisdiction to make the freezing order is not based on issues of comity. It is based on the proposition that the property could never have been properly regarded as confiscable property, within the meaning of the CPCA: see Centurion's submissions dated 10 April 2008 [31] - [47].

26 However, that is not a basis for contending that the court has no jurisdiction over the assets of a Channel Islands company which are located in Western Australia. Rather, it is a basis for mounting an objection to a freezing order. But for the reasons set out above, that course is no longer open to Centurion. Its application for an extension of time in which to file an objection must therefore be dismissed.

27 In these circumstances, it is not necessary to consider the merits of Centurion's application. In any event, it would be inappropriate to do so. That is because the DPP would wish to rely on evidence including material in respect of which a confidentiality order was made by Roberts-Smith J on 26 May 2004. That evidence has not been disclosed to Centurion.

28 On 7 July 2004, Centurion filed a chamber summons to set aside the confiscation declaration made by Roberts-Smith J on 2 July.

29 The application was based on the assumption that in making the declaration, Roberts-Smith J had exercised some judicial discretion. Having considered the matter further, Centurion came to the view that because the court was obliged to make the declaration, the application was misconceived.

30 Counsel for Centurion accepted that the chamber summons dated 7 July 2004 should be dismissed and I so ordered at the hearing of the 2 July 2004 chamber summons.