MATTER : Sections 15, 41, 57 and 79 of the Criminal Property Confiscation Act 2000 (WA)

BETWEEN : THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law - Criminal Property Confiscation Act 2000 - Freezing order - Objection proceedings - Dismissal of objection

Criminal Property Confiscation Act 2000

Respondent to the Objectors : State Director of Public Prosecutions

1 WHEELER J: On 12 July 2002 McKechnie J made a freezing order pursuant to s 41 of the Criminal Property Confiscation Act 2000 ("the Act") in relation to certain property in the hands of Nigel Cunningham Mansfield and Rosalind Jane Mansfield ("the Respondents"). Section 43 of the Act permits the Court to make a freezing order if, among other things, an application has been made against the person or persons concerned for a criminal benefits declaration, or the Director of Public Prosecutions ("DPP") advises the Court that such an application is likely to be made within 21 days after the freezing order is made: s 43(3)(b) and (c). In the present case, the DPP filed a notice of originating motion for a freezing order and examination order on 11 July 2002. On 12 July 2002, after McKechnie J granted the freezing order, the DPP filed an application for a criminal benefits declaration against the Respondents ("the primary proceedings"). By chambers summons for order of objection dated 14 August 2002 ("the application") and made pursuant to s 84 of the Act, the present objector, Fitzroy All Pty Ltd as trustee for the FA Trust ("the Objector") sought to set aside the freezing order in relation to a significant amount of property the subject of the freezing order.

2 I heard the Objector's application on 16 July 2003 and on 8 September 2003 delivered reasons for dismissing the application, finding that the Objector had not satisfied me on the balance of probabilities that the Respondents neither owned nor effectively controlled the property and had not at any time given it away. Those reasons are [2003] WASC 173. Counsel for the Respondent to the Objections, The State of Western Australia ("the State") applied for an order for costs, including reserved costs but did not formally move for judgment.

3 On 24 September 2003 the State filed a chamber summons for an order that the objection be dismissed. The Objector filed submissions conceding that the State is entitled to its reasonable costs of both the application heard by me and an application for discovery heard by Barker J in September 2002. However the Objector contends that despite the dismissal of the application, its objection should not be dismissed and that it should remain a party to the primary proceedings until all objections are finalised and the DPP's application for a criminal benefits declaration against the Respondents is finally determined.

4 Confiscation of property is dealt with in Pt 2 of the Act. Frozen property is automatically 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: s 7(1). As McKechnie J pointed out in Permanent Trustee Co Ltd v Western Australia [2002] WASC 22 at [50], this is the fundamental difference between the Act and other criminal confiscation statutes. If a freezing order is issued and a person fails to object within 28 days after the last day on which a copy of the freezing order was served upon anyone with an interest in the property, the property is confiscated by operation of law without any further judicial or administrative intervention.

5 Section 79 of the Act permits a person to object to the confiscation of property the subject of a freezing order and O 81FA r 5(1) of the Supreme Court Rules requires the objection to be made by originating summons. If an objection is filed within time, the property is not confiscated until the objection (or each objection if there is more than one), is finally determined and the freezing order is not set aside: s 7(2)(a) and (c). Hence, the immediate effect of an objection to a freezing order is to suspend the confiscation process until the court finally determines the objection.

6 The proceedings under which the objection is determined are separate although analogous to the primary proceedings. However, the Objector does not become a party to the primary proceedings simply by virtue of its objection. In Re The Criminal Property Confiscation Act 2000; Ex Parte State Director of Public Prosecutions [2002] WASC 117, Robert-Smith J agreed with the submission that proceedings upon an objection under the Act are not in respect of a cause of action and do not involve the objector seeking to enforce a right against the State. Rather, the objection is simply an allegation by the objector that the statutory criteria for setting aside a freezing notice or freezing order have been met.

7 Barker J took a similar view in "B" & Ors v State of Western Australia & Anor [2002] WASC 298 where at [38] he said:

"It follows that, upon the making of a freezing order, as in this case, persons who claim to have an interest in property the subject of a freezing order are not themselves, by reason of the making of the freezing order, 'parties' to any 'proceedings' under the Act. For example, they are not, as a result of the making of the freezing order, required to attend for examination. Only if an examination order is made under the Act in respect of a particular person, will a person have an obligation to attend an examination. If a person who claims an interest in property the subject of a freezing order wishes to object to the confiscation of the frozen property, then an objection to confiscation must be lodged, as it has been here, pursuant to s 79 of the Act. Upon the making of that application, there is a particular 'proceeding' and that is the proceeding which might be called an 'objection proceeding', as the heading to s 80 of the Act suggests."

8 I respectfully agree with their Honours. The Objector is not a party to the primary proceedings and its interest is confined to its application to set aside the freezing order in relation to some of the frozen property. If that issue is finally determined against the Objector, the objection is dismissed. In these circumstances, unless the Objector is granted leave to intervene in the primary proceedings in the way any party claiming an interest in legal proceedings can seek leave to intervene, the Objector has no further part to play in the primary proceedings or indeed in any proceedings under the Act in respect of the frozen property.

9 I dismissed the Objector's application on 8 September 2003 thereby finally determining its objection for the purposes of s 7(2)(a) and (c) of the Act. Although I did not expressly dismiss its objection, that is the inevitable consequence of its unsuccessful application. I would make orders in terms of the Minute of Proposed Orders Dismissing Objection and for Costs filed by DPP on 17 October 2003.