White v Director of Public Prosecutions (Wa)

[2011] HCA 20

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(Judgment by: French CJ, Crennan J, Bell J)

White
vDirector of Public Prosecutions (Wa)

Court:

Judges:
French CJ
Crennan J
Bell JGummow J
Heydon J

Hearing date: 8 June 2011
Judgment date: 8 June 2011

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Judgment by:
French CJ
Crennan J
Bell J

Introduction

1. 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.

2. 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.

3. 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.

Factual background

4. On the appeal to this Court, the parties were on common ground as to relevant facts before the jury. Those facts, which were set out in the written submissions filed on behalf of the appellant, may be summarised as follows:

•

The premises at Jade Street, Maddington, were in an industrial area. The appellant rented them and operated a trucking business from them.

•

The premises were surrounded by a cyclone fence. Entry was gained through two gates, each six-feet high, surmounted by three strands of barbed wire and with a chain and two padlocks.

•

On 19 August 2001, the deceased attended the property with a Mrs Miller for the purpose of obtaining amphetamines. Both had consumed alcohol and amphetamines earlier. When they arrived, there were three young women already at the premises, two unidentified men, and a man known as Rainbow.

•

On that day, the appellant instructed Sidney Reid to go to the premises, lock the gates and not let anyone come in or out. He did not give Reid a reason for this instruction.

•

Reid complied with the appellant's instructions. He drove to the property, parked his car there, and asked Rainbow, who had a key, to lock the gates. Rainbow did so. He and Rainbow then went up to the house.

•

The appellant denied that he had telephoned Reid asking him to close the gates. He accepted that the deceased and Mrs Miller may have turned up at the property unannounced.

•

The appellant and one Richard Samuels drove to the property and arrived there shortly after the gates had been locked. They unlocked the gates, drove the car onto the property, locked the gates behind them and walked to the house.

•

The appellant told Mrs Miller and the other women to leave the premises. They left in a car. Rainbow unlocked the gates to let the women out. He then relocked them.

•

The appellant confronted the deceased about the repayment of money. The deceased did not reply. The appellant said he would make an example of him. As the deceased walked from the house towards the back of the property, he was followed by the appellant, who produced a gun and shot him in the left shoulder.

•

The deceased ran from the appellant who fired a further three shots at the deceased, before the deceased reached the locked gates.

•

The deceased climbed the locked gates to leave the premises. As he reached the top of the gates, the appellant shot him in the buttocks.

•

The deceased came down on the other side of the gates and collapsed on the ground. The appellant then unlocked the gates, walked out of the premises and shot the deceased in the head, killing him. He then moved the deceased's body onto the premises before transporting and disposing of it.

Statutory framework

5. The Act provides "for the confiscation in certain circumstances of property acquired as a result of criminal activity and property used for criminal activity" ^[6] . A key term in the Act is "property", defined in the Glossary to the Act as:

"(a) real or personal property of any description, wherever situated, whether tangible or intangible; or

(b) a legal or equitable interest in any property referred to in paragraph (a)".

The definition is more limited than the usage of the term "property" in parts of the Act where it plainly refers to the land or things which are the subject of property interests. Its usage is considered later in these reasons.

6. The Act provides in s 21 that the DPP may apply to a court for a "crime-used property substitution declaration against a person" ^[7] . The form of such a declaration and the conditions under which it must be made are set out in s 22. If the conditions are satisfied, a declaration must be made by the court "that property owned by the respondent is available for confiscation instead of crime-used property" ^[8] . The conditions are that ^[9] :

"(a) the crime-used property is not available for confiscation as mentioned in subsection (2); and

(b) it is more likely than not that the respondent made criminal use of the crime-used property".

7. The crime-used property is not available for confiscation if the respondent does not own and have effective control of it ^[10] . There is a presumption that property is crime-used where the respondent has been convicted of a relevant confiscation offence ^[11] . The presumption appears to be activated by the fact of the allegation, in proceedings under s 21, that the property was "crime-used" in relation to the confiscation offence. Otherwise, the applicant for the declaration bears the onus of establishing that the respondent made criminal use of the property ^[12] . The term "relevant confiscation offence" is defined in the Glossary to the Act to mean:

"the confiscation offence or suspected confiscation offence that is relevant to bringing the property within the scope of this Act".

8. The court is required, when making a declaration under s 22, to assess the value of the crime-used property in accordance with s 23 and to specify that value in the declaration ^[13] .

9. The terms "crime-used" and "criminal use" are defined in ss 146 and 147 of the Act. Section 146 relevantly provides:

"(1) For the purposes of this Act, property is crime-used if -

(a)

the property is or was used, or intended for use, directly or indirectly, in or in connection with the commission of a confiscation offence, or in or in connection with facilitating the commission of a confiscation offence;

(b)

the property is or was used for storing property that was acquired unlawfully in the course of the commission of a confiscation offence; or

(c)

any act or omission was done, omitted to be done or facilitated in or on the property in connection with the commission of a confiscation offence.

...

(3) Without limiting subsection (1) or (2), any property in or on which an offence under Chapter XXII or XXXI of The Criminal Code is committed is crime-used property." ^[14]

As will be apparent, crime-used property is not limited to any land or thing in which the offender has or has ever had any interest, or which is or has ever been controlled by the offender. Section 147 provides:

"For the purposes of this Act, a person makes criminal use of property if the person, alone or with anyone else (who need not be identified) uses or intends to use the property in a way that brings the property within the definition of crime-used property."

10. Before turning to the constructional issues raised on the appeal, it is necessary to consider the way in which the word "property" is used in ss 22, 146 and 147. The ordinary meaning of the word "property" is "[t]hat which one owns; a thing or things belonging to a person or persons ..." and "[a] house or piece of land owned" ^[15] . In law, "property" generally refers not to a thing but to "a legal relationship with a thing" ^[16] . In Telstra Corporation Limited v The Commonwealth ^[17] , this Court observed that in many cases it may be helpful to speak of property as "a bundle of rights" ^[18] . At other times it may be more helpful to speak of property as "a legally endorsed concentration of power over things and resources" ^[19] . The Court said that ^[20] :

"Seldom will it be useful to use the word 'property' as referring only to the subject matter of that legally endorsed concentration of power."

Nevertheless, as Latham CJ pointed out, in Minister of State for the Army v Dalziel ^[21] the term "property" is ambiguous ^[22] :

"As applied to land it may mean the land itself in relation to which rights of ownership exist, or it may refer to the rights of ownership which exist in relation to the land."

11. An example of an interpretation of a contract according to the ordinary meaning of "property" may be seen in the judgment of Barwick CJ in Travinto Nominees Pty Ltd v Vlattas ^[23] . There the words "error or misdescription of the property", appearing in standard terms of a contract for the sale of land, were construed as referring to misdescription of the land the subject matter of the sale.

12. The term "property" used in a statute may take its ordinary meaning, its legal meaning, or both meanings. The interpretation of the term depends upon the context and purpose of the provision in which it is found. Section 146(1)(b) of the Act refers to "property ... used for storing property". That usage may be taken to include the exercise of rights over the land or a thing (eg, a container) to store property. It may also extend to the use of things which are the subject of property rights. That extension is intended as appears from s 146(1)(c) which speaks of things done "in or on the property". It follows that the term "property" used in s 146, and therefore having a similar usage in ss 22 and 147, covers the use of property rights of the kind defined in the Glossary and the use of things which are the subject of property rights.

The primary judge's decision

13. The primary judge held that the premises were crime-used property ^[24] . In so holding, her Honour relied upon s 146(1)(c) and not upon s 146(1)(a).

14. Her Honour doubted that it could be said that the premises were used in, or in connection with, the commission of the offence of wilful murder in the sense contemplated by s 146(1)(a). It was straining ordinary speech to say that, because the fence and gates were used in connection with the offence, the premises were also used in that connection ^[25] .

15. The premises, however, were held to be crime-used property within the meaning of s 146(1)(c). This was because the deceased was shot by the appellant while he was on the premises and the acts of the appellant were "in connection with" the ultimate fatal shot which was discharged with an intent to kill. Even putting the earlier shots to one side, the appellant's penultimate shot, fired while he was standing on the premises, had a clear connection to the fatal shot which he fired with an intention to kill ^[26] .

16. Her Honour went on to hold, however, that this conclusion would not support a finding that the appellant had made criminal use of the premises within the meaning of s 147. Her Honour held, in effect, that while conduct by the appellant rendering property "crime-used" within the meaning of ss 146(1)(a) and (b) would constitute criminal use of the property for the purposes of s 147, the same was not true of conduct by the appellant only caught by s 146(1)(c) ^[27] .

The decision of the Court of Appeal

17. The Court of Appeal held, contrary to the finding of the primary judge, that the property was crime-used within the meaning of s 146(1)(a). In so doing, the Court held that it was not necessary, for the application of s 146(1)(a), that the act or acts constituting the relevant use had to be done with the intention or purpose of committing the specific unlawful act constituting the confiscation offence. The use of the premises for the purposes of s 146(1)(a) could be "indirectly in connection with the facilitation of a confiscation offence." ^[28]

18. The Court of Appeal also held, contrary to the primary judge's conclusion, that the primary defined term in ss 22, 146 and 147 is "crime-used" and that it incorporates the word "used" to encompass all the activities listed in ss 146(1) and (3). This indicates that all those activities are intended to be uses for the purposes of s 147 ^[29] . The Court of Appeal allowed the appeal and set aside the orders made by the primary judge.

The appellant's argument

19. The steps in the appellant's argument in this Court may be summarised as follows:

1.

A crime-used property substitution declaration, under s 21 of the Act, cannot be made against a person unless that person made criminal use of the crime-used property within the meaning of s 147 of the Act.

2.

Contrary to the conclusion of the Court of Appeal, the premises at Maddington were not crime-used within the meaning of s 146(1)(a). The Court of Appeal's finding to the contrary was based on factual conclusions not open on the evidence.

3.

It was not disputed that the premises were crime-used property within the meaning of s 146(1)(c).

4.

The conduct covered by s 146(1)(c) did not establish criminal use of the property by the appellant within the meaning of s 147.

20. As appears from the above, the appellant's appeal must fail unless he can show that the conduct referred to in s 146(1)(c) does not constitute "criminal use" of property for the purposes of s 147. If the conduct referred to in s 146(1)(c) does constitute "criminal use" then, having regard to the undisputed application of that paragraph to the facts of this case, the necessary conditions for the making of a crime-used property substitution declaration under s 21 were satisfied. It is desirable therefore, to turn first to that question of construction.

The construction of "criminal use" under s 147

21. 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.

22. 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).

23. 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.

24. 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.

Conclusion

25. For the preceding reasons the appeal should be dismissed with costs.