This morning the High Court rejected the appeal of a convicted murderer against a property confiscation order made by the Supreme Court of Western Australia.
This case concerned provisions of the Western Australia Criminal Property Confiscation Act 2000. This Act in broad terms provides a scheme for the confiscation of property acquired as a result of the proceeds of criminal activity, and property used for criminal activity. It also allowed for the confiscation of other property of equal value to that acquired from the proceeds of or used for criminal activity, where the original property was not owned by, or no longer owned by, the criminal.
In this particular case, in May 2003 White was convicted of the wilful murder of a Mr Tapley in 2001. At the time of the murder White lived in rented premises on a property located in an industrial area from which he conducted a trucking business in Maddington. A 6-foot cyclone fence surrounded the property. Tapley attended the property with his girlfriend in order to obtain amphetamines. Both were intoxicated. When they arrived, there were three young women, two unidentified men and a third man known as Rainbow. White was not at the property at the time. He rang a Mr Reid and asked him to attend the property, lock the gates, and not let anyone come or go. When Reid arrived at the property he saw that the gates were open, and so he asked Rainbow, who had a key, to lock the gates. Reid and Rainbow then went up to the house. A short time later White attended the property with a Mr Samuels. They unlocked the gate, drove onto the property, then locked the gates behind them. White told Tapley’s girlfriend and the other women to leave the property, which they did, Rainbow unlocking the gates and then locking them again after they had left.
White confronted Tapley about the repayment of money. Tapley did not reply, and White said that he would make an example of him. Tapley walked form the house followed by White, who pulled out a gun and shot Tapley in the shoulder. Tapley ran, and White fired a further three shots before Tapley reached the locked gates. While he climbed over the gates, White shot him in the buttocks. Tapley collapsed on the ground outside the fence. White then unlocked the gates, walked out of the property, and shot Tapley in the head killing him. He then moved Tapley’s body onto the property, before transporting it and disposing of the body.
The Director of Public Prosecutions instituted proceedings seeking a declaration that property owned by White was available for confiscation instead of the crime-used property at Maddington (which White did not own at the time of the murder). The power to make such a declaration depended upon the operation of sections 146 and 147 of the Criminal Property Confiscation Act 2000.
Section 146(a) provides that property is crime-used if the property is used, or intended to be used, in the commission or in facilitating the commission of a confiscation offence (in this case, wilful murder). Section 146(c) provides that property is crime-used if any act was done or facilitated in or on the property in connection with the commission of a confiscation offence. Section 147 provides that a person makes criminal use of property if the person, alone or with anyone else, uses or intends to use the property in a way that brings the property within the definition of crime-used property.
Jenkins J at first instance refused to make the declaration. The conduct did not fall within section 146(1)(a) because 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. However, because Tapley was shot by White while he was on the premises and the acts of White were “in connection with” the ultimate fatal shot which was discharged with an intent to kill, then White’s conduct fell within section 146(1)(c). However, this did not mean that White made use of the property in committing the murder within the meaning of section 147. Although the locking of the gates may have assisted White in committing the murder, the original reason for locking the gates was not to facilitate the commission of that offence. In doing so, Jenkins J held that a person did not make “criminal use” of the property within the meaning of section 147 where it was crime-used by virtue only of section 146(1)(c).
The WA Court of Appeal allowed an appeal by the DPP. In doing so, the Court of Appeal found that the property had been “used” in two ways bringing the property within section 146(1)(a): by the intentional locking of the gates in order to prevent Tapley from leaving the property and allowing him to confront and deal with him; and by storing Tapley’s body away from public view ending its disposal. These two uses were in connection with the commission of the offence of wilful murder, and it clearly therefore satisfied the requirements of section 147.
The High Court unanimously upheld the decision of the Court of Appeal. In doing so, however, it did not have to consider the dispute about whether or not, on the facts of the case, section 146(1)(a) was engaged. It held that section 147 applied equally in respect of conduct falling within section 146(1)(c) as it did in relation to conduct falling within section 146(1)(a) and (b). In doing so, it therefore rejected the rather strained construction placed on the legislation by Jenkins J.
White v Director of Public Prosecutions (WA)  HCA 20