White v Director of Public Prosecutions (Wa)
[2011] HCA 20(Judgment by: Gummow J)
White
vDirector of Public Prosecutions (Wa)
Judges:
French CJ
Crennan J
Bell J
Gummow JHeydon J
Judgment date: 8 June 2011
Judgment by:
Gummow J
26. In Re Director of Public Prosecutions ; Ex parte Lawler [34] , Dawson J observed:
"Confiscation of property connected with the commission of crimes was long part of the common law and had its origin in the doctrines of attainder and deodand [35] . Property could be forfeited even if its owner was not involved in the crime [36] . Forfeiture at common law was abolished in England in 1870 and thereafter in this country [37] , but statutory powers of forfeiture have remained in certain areas and, indeed, have been introduced in some new areas [38] ."
The Criminal Property Confiscation Act 2000 (WA) ("the Act"), with which this appeal is concerned, is one of those new areas.
27. 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".
28. 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.
29. 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.
30. 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.
31. 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)).
32. 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:
"(a) that property owned by GARY ERNEST WHITE is available for confiscation instead of crime-used property; and
(b) specifying, pursuant to s 22(6)(b) of the Act, the assessed value of the crime-used property is $265,000."
Section 24 rendered the appellant liable to pay to the State an amount equal to $265,000, and s 26 provided that the frozen property might be applied towards satisfying that debt.
33. 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.
34. 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.
35. The appeal should be dismissed with costs.