White v Director of Public Prosecutions

White v Director of Public Prosecutions - [2011] HCA 20 - HCA 2011 case summary — Zoe

[9]

The Criminal Property Confiscation Act 2000 (WA) ("the Act") provides for the confiscation of property used in criminal offences. Where property so used neither belongs to nor is effectively controlled by the offender, s 22 of the Act enables a declaration to be made, on the application of the Director of Public Prosecutions ("the DPP"), that property owned by the offender is available for confiscation instead of the crime-used property. Such an order is called a crime-used property substitution declaration[1]. A judge of the Supreme Court of Western Australia dismissed an application for such a declaration against the appellant, who had been convicted in 2003 of a wilful murder committed in 2001[2]. An appeal to the Court of Appeal of the Supreme Court of Western Australia by the DPP was allowed[3]. On 25 March 2010, the Court of Appeal made the declaration sought by the DPP.
The wilful murder, of which the appellant was convicted, was committed immediately outside the boundary fence of fenced and gated premises at 10 Jade Street, Maddington, Western Australia. At the time of the offence the appellant was leasing those premises. The appellant had shot at the deceased five times inside the premises, the gates to which had been locked at the appellant's direction. At least two of the shots wounded the deceased. The deceased climbed over one of the locked gates to escape the appellant, but was fatally shot while on the ground outside the gate. The sentencing judge described the killing as "a cold-blooded execution". The appellant was sentenced to strict-security life imprisonment with a non-parole period of 22 years.
A "crime-used property substitution declaration" can be made if "the crime-used property is not available for confiscation"[4] and if "it is more likely than not that the [appellant] made criminal use of the crime-used property"[5]. It was accepted in the litigation that the rented premises were not available for confiscation. Thus, the questions raised by this appeal are whether the premises, leased by the appellant, were "crime-used property" within the meaning of s 146 of the Act and whether he made "criminal use" of those premises within the meaning of s 147 of the Act. Those are necessary conditions for the making of a declaration under s 22. On their proper construction and application to the facts of this case, both conditions were fulfilled. The appeal against the decision of the Court of Appeal should be dismissed.

[53]

As was submitted by the appellant, s 146(1)(c) has a broad application. It covers cases in which acts or omissions were done or facilitated in or on the property in connection with the commission of a confiscation offence. 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; utilize, turn to account"[30]. According to that ordinary meaning, "use" would be a subset of the class of conduct described in s 146(1)(c). However, the relationship which the words "in connection with" forge between "act or omission done on the property" and "the commission of a confiscation offence" suggests that even though it may involve an extension of the verb "use", the conduct described in s 146(1)(c) can be brought within the meaning "makes criminal use of property" in s 147, without doing violence to the language of the latter section. In this case, purpose and context favour that interpretation.
The appellant submitted that the word "use" in s 147 refers only to the categories of conduct in s 146(1)(a) and (b) as conduct bringing the property within the alternative definitions of crime-used property in those two paragraphs. That interpretation, however, gives rise to a disconformity between ss 146 and 147. As appears from the conditions in s 22(1) to which they relate, the two provisions complement each other. The disconformity is removed and complementarity is effected if the term "definition of crime-used property" in s 147 is construed as picking up each of the alternative definitions in s 146(1) and (3).
The latter construction is supported by reference to s 82 of the Act, which provides for the setting aside of freezing notices and freezing orders made under the Act. A court may set aside a freezing notice, or order affecting property, if an objector establishes, inter alia, that it is more likely than not that the objector is an owner[31] and an innocent party[32], and that the property is not effectively controlled by a person who made criminal use of the property[33]. The construction of s 147 for which the appellant contended, would, as the DPP submitted, be inconsistent with the apparent intentions of ss 82(4) and 87. On the construction of s 147 advanced by the appellant, a person who did not own the property, but effectively controlled it, and whose acts rendered the property crime-used within the meaning of s 146(1)(c), would be entitled to have a freezing order set aside, or to have the crime-used property returned after confiscation. A person in the same position, whose act rendered the property crime-used under s 146(1)(a) or (b), would not be so entitled.
The appellant's construction of s 147 not being accepted, this appeal cannot succeed. It is unnecessary to consider the other contentions advanced by the appellant in relation to the construction of s 146(1)(a) and its application to the facts of the case.

[57]

Unlike the federal legislation in issue in Lawler, the provisions of the Act are not directed to the confiscation of what may be the assets of innocent persons, but rather to those of persons such as the appellant, who was convicted of wilful murder. To that end, the Act looks to property with one or more defined characteristics, including "crime‑used property" and "crime‑derived property".
Further, as the joint reasons explain, the term "property" is used in the Act in several senses which reflect the ambulatory terms of its definition in the Glossary of the Act. The complexities to which this state of affairs may give rise are illustrated by the facts in this case. The appellant rented the fenced and gated premises at 10 Jade Street, Maddington. The land later was valued, as at 19 August 2001, the date of the murder, at $265,000, inclusive of GST. As a tenant he had the right to exclusive possession against all others including his landlord[39], and this right he exercised.
The tenancy gave the appellant an estate or interest in the land[40], and the tenancy itself was "property" in the sense of the definition in the Glossary. However, for the land, or, more accurately, the title as registered proprietor under the Transfer of Land Act 1893 (WA), to be confiscated as "crime‑used property", it would have been necessary that the appellant "owned" it (s 22(2)(a)). The exclusive possession given by his tenancy would not be sufficient for that purpose.
A "crime‑used property substitution declaration" could be made against the appellant if two criteria were met. The first was that "the crime‑used property", here the parcel of land, the title to which was not owned by the appellant, was not available for confiscation (s 22(1)(a)). The litigation has been conducted on the footing that the criterion of non‑availability was met. The dispute concerns the second criterion. This was that "it [was] more likely than not that [the appellant] made criminal use of the crime‑used property" (s 22(1)(b)). The term "criminal use" is defined in s 147 and "crime‑used" in s 146.
If there was such use, as the Court of Appeal concluded there had been, then the court was to assess and specify the value of the crime‑used property at the time of the murder (s 22(6), s 23(1)). The value of the land (ie $265,000) was to be its full value even if the appellant did not outlay any amount for the purpose of obtaining or making the criminal use of the property (s 23(2)).
At the time of the hearing before the primary judge of the declaration application the appellant had a bank account balance in his favour of approximately $135,000. The bank account was the subject of a "freezing order" which had been obtained ex parte under s 41 of the Act. The declaration made by the Court of Appeal, which the appellant challenges, was:

[61]

The appellant, "in connection with" the commission of the murder, had done acts on the crime‑used property within the meaning of par (c) of s 146(1). This was a use of the property in a way that, within the meaning of s 147, brought the property within par (c) of s 146(1) and, in turn, within the definition of "criminal use" in s 147. I agree with the reasons given by French CJ, Crennan and Bell JJ for those conclusions.
The result is that the appellant made criminal use of the property and the criterion in s 22(1)(b) of the Act was satisfied. This enlivened the power to grant the declaration made by the Court of Appeal.
The appeal should be dismissed with costs.
HEYDON J. Section 22 of the Criminal Property Confiscation Act 2000 (WA) provides for the making of a "crime-used property substitution declaration". That declaration allows for the confiscation of property. One condition for its making is that the perpetrator of a crime does not own, or does not have effective control of, crime-used property. The appellant did not challenge the satisfaction of that condition in this case. The satisfaction of that condition meant that the Court was obliged to make the order in relation to other property owned by the appellant even though it was not used in the crime, provided that the appellant made "criminal use of the crime-used property".
The only contention of the appellant which calls for consideration is that it was wrong of the Court of Appeal to have made a crime-used property substitution declaration on the ground that the appellant had not made "criminal use" of the premises from which he had committed the murder he had been convicted of.
Did the appellant make "criminal use" of "crime-used property"? Section 147 provides that the appellant would have made "criminal use of property" if he had used it in a way that brought it within the definition of "crime-used property". The definition of "crime-used property" is in s 146. The trial judge found that the appellant's conduct only fell within s 146(1)(c), not within either par (a) or par (b) of s 146(1); and that the definition of "crime-used property" was only located in those two latter paragraphs. With respect, the Court of Appeal was correct to reject that construction of s 146(1). Before pars (a)-(c) of s 146(1) appear the words: "For the purposes of this Act, property is crime-used if". Paragraph (b) is followed by the word "or". There is no reason to treat pars (a) and (b) as being the only relevant parts of the sub-section governed by those opening words, and not par (c). The appellant submitted that s 147 does not encompass s 146(1)(c), as the circumstance that property falls within s 146(1)(c) "does not involve such property being 'used'." He also submitted that s 146(1)(c) "is referable to acts or omissions which occur on or in the property in connection with the commission of an offence and it is this deliberate act which brings the property within the defined term of 'crime-used' not the use or intended use of the property". But the fact that an act is done, omitted to be done or facilitated in or on property in connection with the commission of a confiscation offence within the meaning of s 146(1)(c) does not prevent the property being described as having been "used". On that ground the appellant's submission that s 147 applies only to activities within s 146(1)(a)-(b) and not to those within s 146(1)(c) must be rejected.
The appeal must be dismissed.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (77 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (16)

Cited By (3)