Mansfield v The Director of Public Prosecutions for Western Australia

[2005] WASCA 79

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Confiscation of property
3. › Freezing orders
4. › Power to impose conditions
5. › Whether court may require undertaking as to damages from Director of Public Prosecutions
6. › Significance of omission from current Act of express provision in predecessor legislation
7. › Criminal Property Confiscation Act 2000 (WA), ss 43, 45, 102, 137
1. Criminal Law
2. › Confiscation of property
3. › Freezing orders
4. › Variation
5. › Release of funds for reasonable living and business expenses
6. › Whether 'reasonable living and business expenses' includes legal costs
7. › Criminal Property Confiscation Act 2000 (WA), s 45
1. Practice and Procedure
2. › Adjournment
3. › Refusal of adjournment
4. › Whether refusal was reasonable exercise of discretion
5. › Absence of prejudice to opposing party
6. › House v The King (1936) 55 CLR 499
1. Statutes
2. › Construction
3. › Deliberate omission from successor legislation of provision in predecessor Act
4. › Use of extrinsic materials to resolve ambiguity
5. › Second reading speech
6. › Interpretation Act 1984 (WA), ss 19(1), 19(2)(e), 19(2)(f)

Quick Take

Under the Criminal Property Confiscation Act 2000 (WA), the court has no power to require the DPP to provide an undertaking as to damages as a condition of a freezing order, and s 45 does not authorise the release of frozen funds for legal expenses. The deliberate omission of the undertaking provision from the current Act (when the predecessor Act expressly provided for it) is determinative. However, the question whether the court may exclude property from a freezing order to allow payment of legal expenses (as distinct from releasing frozen property under s 45) was raised by Pullin JA in dissent and remains open for future consideration.