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Director of Public Prosecutions for Western Australia - (24 Feb 2022)

A freezing notice for property may be issued, if there are reasonable grounds for suspecting that the property is crime-used or crime-derived

Civil

The Director of Public Prosecutions (DPP) seeks a declaration that particular property has been confiscated. The property was the subject of a freezing notice and no objection to confiscation of the property was filed within the prescribed time.

A freezing notice for property may be issued, if there are reasonable grounds for suspecting that the property is crime-used or crime-derived. Section 36 of the Criminal Property Confiscation Act, 2000 sets out the service, notification and filing requirements of freezing notices. A freezing notice must be served on any person from whom the property covered by the notice was taken. It must also be served on any other person who, to the knowledge of the applicant for the notice, is, or may be, or claims to be, an interested party. A person served with a freezing notice under Section 36 must give a statutory declaration advising, in effect, of any other persons who may be an interested party. Section 36(4) requires, in effect, that the freezing notice be served on any such identified interested party. The applicant must also file the freezing notice in the court specified in the notice. A freezing notice for property other than registerable real property comes into force when the notice is issued.

Once property has been confiscated under Section 7 (or s 6), a person may apply for the release of such property. The application must be made within 28 days after the person became aware, or can reasonably be expected to have become aware, that the property has been confiscated. As the application under Section 30 was brought by the DPP, and as the court is required to be satisfied that the property has been confiscated, the DPP bears the onus of proving that the property was confiscated. The DPP must prove it on the balance of probabilities.

The Freezing Notice was issued on the Property on the basis that there were reasonable grounds for suspecting that the Property was crime-used or crime-derived. The DPP satisfied its service and notice obligations under Section 36 of the Confiscation Act. An objection to the confiscation of the Property was not filed on or before the 28th day after the service cut off date. It follows that the Property, including any interest that has accrued on it, has been confiscated. In the absence of any third party interest, nothing else must be established before the court is compelled to make a declaration under Section 30. It is declared that the Property has been confiscated.

Tags : PROPERTY   CONFISCATION   DECLARATION  

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