I have had an important win (on the law at least) in a District Court matter under the Criminal Property Confiscation Act 2000 (WA).

It was settled over 10 years ago that certain accused could access money frozen under the Criminal Property Confiscation Act 2000 (CPCA) to pay for the legal costs associated with the defence of related criminal charges and the legal costs of the confiscations proceedings.1

There have been a number of important decisions on how that process works over the years since.2 At all times it has been the position of the Director of Public Prosecutions that certain property is not capable of being released to fund legal expenses. Particularly, so the DPP has always maintained, property frozen under s43(8) CPCA that was suspected to be crime-used or crime-derived was not available.

No one had tested that position; until now. Upon my challenge to the status-quo Goetze DCJ held that I was correct and that there was no reason to treat property frozen under s 43(8) differently to say property belonging to a person who had been charged with an offence that could see them declared a drug trafficker under s 32A of the Misuse of Drugs Act 1981.

Although his Honour has handed down his decision and there is no suppression order over it, it was never made publicly available. Notwithstanding this, the decision does have a media neutral citation: E.F. & Ors v Western Australia [2017] WADC 159.

The following extracts from the judgment are significant:

[1] [the accused] stands charged by indictment with eight offences. Five of those offences allege that he was in possession of a thing capable of being stolen, namely various sums of cash money that were reasonably suspected to have been unlawfully obtained. The other three offences allege that he was in possession of prohibited drugs, namely methylamphetamine (two counts) and cocaine (one count), with intent to sell or supply the prohibited drugs to another.

[2] The total sum of money involved in the money counts is AUD 171,000 and USD 9,200. The drug charges relate to 1.1065kg and 3g of methylamphetamine and 9g of cocaine.

[3] … the State of Western Australia alleged that there were reasonable grounds for suspecting that the cash referred to in the money counts is crime-used and crime-derived.

[4] … the exact sums of cash money particularised respectively in each of the money counts in the indictment [were frozen under the Criminal Property Confiscation Act 2000].

[6] [the accused] has now made application … pursuant to s 43(5) and s 43(8) of the Act, to vary the freezing order so as to provide for the release of funds to him for the purpose of meeting his legal costs and disbursements likely to be incurred at trial on the indictment …

[84] On the basis of [authority, the accused] is not barred from seeking access to the cash which is the subject of the money charges against him. He has a possessory title to the money, being the subject of the money charges in the indictment, which is superior to that of the State. The position would be different if a third party had a legitimate claim to the money eg, if it had been stolen in a bank robbery.

[85] … if part of the frozen property were exempted under strict conditions to provide for his legal expenses, [the accused] would in that way be deprived of the money so exempted.

[87] At face value, s 43(8) does not demand the court to freeze all such crime-used or crime-derived property.

[91] There is nothing in s 43(8) which requires all property suspected of being crime-used or crime-derived to be frozen. There is nothing in s 45(e) which separates out, or which imposes different requirements upon s 43(8) from the other provisions of s 43.

[92] Other than s 43(4), which is not relevant with respect to s 43(8), there is nothing within s 43 or s 45 which fetters the discretion to freeze some or all of the property.

[93] Section 43(8) does not preclude exempting property for the payment of legal expenses.

[95] Mr Greaves made the submission that in this case …, a similar order as postulated by Pullin JA should be made, thereby varying the freezing order so that provision can be made for the required legal expenses and disbursements … There is no reason to not accept that submission.

[97] It follows that there is power to exempt some crime-used or crime-derived property, for the purpose of meeting legal expenses, from a freezing order made under s 43(8). The power is discretionary. However, if the power is exercised, it requires strict conditions being attached to the use of the property.

[98] This is best summed up by King CJ in Vella (1993) 70 A Crim R 241 at 244 as follows: The restrained property is not property of which the State has or may have been deprived by the alleged criminal activity, nor is it a fund which may be required to compensate the State in respect of any loss which it has sustained. The purpose of the legislation is not restitution or compensation but the deprivation of an offender of the fruits of his criminal activity. … If he is convicted and an order for forfeiture is made, the amount of the legal expenses, although not available for forfeiture, is nevertheless money of which the offender has been deprived by the proceedings against him, by reason of the necessity of paying for his defence. An expensive defence, which does not go to the point of being wasteful, is not thought of as a luxury to which an accused person is not entitled out of property subject to forfeiture.

[110] ..[the accused] is entitled to the presumption of innocence and he is also entitled to the right of silence, which he has exercised in this application, at least with respect to the source of the moneys being the subject of the money changes.

[112] A competent junior member from the local Bar should be able to undertake the defence of this matter.

Sadly for my client his Honour went on to conclude that in the very particular circumstances of this case he was not prepared to exercise the discretion to release frozen property for legal expenses. Those circumstances related to difficulties his Honour had with accepting my client’s truthfulness (as to his inability to otherwise fund his defence) and a conclusion that my client had only himself to blame by reason of having recently purchased a new house and thus depriving himself of funds that could have been used to fund his defence.

Nevertheless the decision has set an important precedent. The DPP will no longer be able to maintain (as their current template letter to solicitors asserts):

In particular:-
• property frozen on crime-used or crime-derived grounds will not be released for any purpose;
• property not established to have been lawfully acquired will not be released for any purpose.

This is an important decision that gives effect to the sentiments3 endorsed by Kirby P (as his Honour then was) in Saxon (1992) 63 A Crim R:

The right to retain private counsel also serves to assure some modicum of equality between the Government and those it chooses to prosecute. The Government can be expected to ‘spend vast sums of money … to try defendants accused of crime’, and of course will devote greater resources to complex cases in which the punitive stakes are high. Precisely for this reason, ‘there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can to prepare and present their defences’. But when the Government provides for appointed counsel, there is no guarantee that levels of compensation and staffing will be even average.

Perhaps the next question is whether property that has arguably already been automatically confiscated under s 8 of the Criminal Property Confiscation Act 2000 (WA) can be made available for legal fees in relation to pursuing an objection or defending a s 30 application for a declaration of confiscation.

  1. See Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 486. []
  2. Most recently Franchina v The State of Western Australia [2014] WASC 463. []
  3. Originally made in the United States in Caplin & Drysdale, Chartered Petitioner v United States 491 US 617 (1989) at 646-647 []