Mansfield v Director of Public Prosecutions for Western Australia

Criminal Law − Confiscation of property − Freezing order − Where Director of Public Prosecutions ("DPP") may apply ex parte for a freezing order pursuant to s 41 of the Criminal Property Confiscation Act 2000 (WA) ("the Act") − Where Court "may" make freezing orders pursuant to s 43 of the Act − Where no express statutory restrictions imposed upon the permissive power to grant freezing orders under s 43 of the Act − Whether relevant that proceedings under the Act are "civil proceedings" by reason of s 102 of the Act − Whether DPP is able to give an undertaking as to damages − Whether the limitation of liability provision in s 137 of the Act would render futile the provision of an undertaking as to damages by the DPP − Whether Court has power to require the DPP to provide an undertaking as to damages when exercising the statutory power under s 43 of the Act to make a freezing order.

Criminal Law − Confiscation of property − Freezing order − Variation of freezing order − Where power to vary freezing orders derived by implication from s 45 of the Act and s 48 of the Interpretation Act 1984 (WA) − Where legal expenses not referred to in s 45 of the Act which provides that the Court may provide for meeting "reasonable living and business expenses" in a freezing order − Whether Court has power to vary a freezing order to allow for the payment of reasonable legal costs.

Courts − Jurisdiction of courts − Relationship between general law powers of court and jurisdiction conferred by the statute − Where s 43 of the Act expressed in permissive terms without express statutory restrictions − Whether equitable principles applicable to granting discretionary remedies at general law may be imported into exercise of jurisdiction under s 43 of the Act.

Statute − Statutory construction − Whether appropriate in legislation to draw negative implications from prior legislation on the same subject matter − Whether appropriate in construing statutory provisions to draw negative implications from other provisions in the Act − Whether s 137 of the Act limits the power conferred by s 43 of the Act to make freezing orders − Whether the express words of s 45 of the Act limit the power to vary freezing orders.

Words and phrases – "freezing order", "undertaking as to damages".

Crimes (Confiscation of Profits) Act 1988 (WA) (repealed) – s 20(11).

Criminal Property Confiscation Act 2000 (WA) – Pt 2, Pt 3 Div 2, Pt 4 Div 3, ss 4, 5, 41, 42, 43, 45, 101, 102, 137, 141, 142.

Crown Suits Act 1947 (WA) – s 5.

Director of Public Prosecutions Act 1991 (WA) – s 10, s 16, s 20.

Interpretation Act 1984 (WA) – s 48.

Supreme Court Act 1935 (WA).

Rules of the Supreme Court (WA) – O 52 r 9.