White v Director of Public Prosecutions (WA) [2011] HCA 20

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN AND BELL JJ

GARY ERNEST WHITE APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

FOR WESTERN AUSTRALIA RESPONDENT

White v Director of Public Prosecutions (WA) [2011] HCA 20

8 June 2011

P44/2010

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Western Australia

Representation

S A Shirrefs SC with H J E van den Heuvel for the appellant (instructed by Holborn Lenhoff Massey)

B Fiannaca SC with I S Jones for the respondent (instructed by Director of Public Prosecutions for Western Australia)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

White v Director of Public Prosecutions (WA)

Criminal law – Procedure – Confiscation of proceeds of crime and related matters – Forfeiture and confiscation of property – Section 22 of Criminal Property Confiscation Act 2000 (WA) ("Act") relevantly required court to make crime-used property substitution declaration where crime‑used property not available for confiscation because offender did not own, and did not have effective control of, property and more likely than not that offender made criminal use of crime‑used property – Section 147 of Act provided offender makes criminal use of property if, alone or with anyone else, offender used or intended to use property in way that brings property within definition of crime‑used property – Section 146(1)(c) provided property "crime-used" if any act or omission done, omitted to be done or facilitated in or on property in connection with commission of confiscation offence – Where DPP applied for crime-used property substitution declaration against appellant – Where not disputed that premises leased by appellant "crime-used" within s 146(1)(c) of Act – Whether definition of "criminal use" in s 147 of Act encompassed conduct within definition of "crime-used" in s 146(1)(c) of Act.