80. Express statutory provision apart,[21] the mere fact that an act is done in or on a particular property will ordinarily not suffice to bring that property within the definition.[22] That is because, as a matter of ordinary language, this could not be characterised as a 'use' of the property.[23] In their joint judgment in White, French CJ and Crennan and Bell JJ said:
On the face of it, the mere doing of an act in or on a property in connection with the commission of a confiscation offence, does not necessarily fit comfortably within the concept of use applied to property. The relevant ordinary meaning of the verb 'use' is to [m]ake use of [a thing], esp. for a particular end or purpose; utilise, turn to account.[24]
81. It is only when the property, or some feature or attribute of it, has been turned to advantage by the offender, or enlisted to the offender's purpose, that it will be possible to say that the property has been 'used'. In King,[25] for example, the offending took place on board a boat but it was held that the boat was no more than the location of the offending. The boat had not been 'employed' for any purpose related to the offending. In Garner,[26] by contrast, the court held that the offender had used a houseboat to provide the intended victims with 'a pleasurable environment and exciting activities', such that the boat became 'an efficient tool of seduction'.
82. Conduct after an offence is completed may also constitute a use of property in connection with the commission of the offence.[27] In White,[28] for example, the West Australian Court of Appeal held that the use of the relevant property to store the body of the murder victim was use in connection with the offence. The issue arose in the context of the commission of a murder by White on an industrial property that was leased by him.
83. The property was enclosed by a six foot cyclone fence, with two double cyclone metal gates at the front of the property. While the victim was at the property, and before White arrived, he arranged for the gates to be locked. After White arrived, he shot the victim in the shoulder. As the victim ran through the yard, White pursued him and fired three more times. As the victim climbed on top of the gate in order to escape, White shot him in the buttocks. The victim fell to the ground outside the property. White left the property through the gate and, as the victim lay on the ground struggling for breath, White fired a sixth shot at the victim's head and killed him. White then dragged the victim's body back onto the property.
84. McLure P, with whom Owen and Buss JJA agreed, held that the expression 'in connection with' required 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'.[29] Her Honour concluded:
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.[30]
85. On the facts of the case before her, McLure P held that, as intentional locking of the gates of the property was for the purpose, and had the effect, of preventing or impeding the victim departing from the property before White finished dealing with him, the use of the property facilitated the murder. Her Honour held that White's subsequent conduct in using the land to store the body away from public view pending its disposal was also a relevant use.
86. Whether there has been a relevant use will depend upon the property in question and the precise way it was used. As the same property can be put to different uses, the determination of whether there is a connection between the particular use of the property and the commission of the offence will involve questions of fact and degree that need to be determined in a commonsense manner.[31]
87. In George, the Full Court of the South Australian Supreme Court was concerned with land on which was situated a shed in which cannabis plants had been grown hydroponically. Doyle CJ (with whom White J agreed) held that the composite expression 'used ... in connection with the commission of an offence' involved practical considerations and matters of degree, such that each case would turn on its own facts.[32] His Honour held that the composite expression did not require a causal connection between the property and the offence. Nor was it necessary that the property be something which was essential or necessary for, or made a unique contribution to, the commission of the offence.[33] His Honour concluded as follows: