White
vDirector of Public Prosecutions (Wa)

Judges: French CJ
Crennan J
Bell J
Gummow J

Heydon J

Judgment by:
Heydon J

36. 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".

37. 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.

38. 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.

39. The appeal must be dismissed.