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A Heavy Burden For Honest Men?

A recent decision by the High Court of Australia, on appeal from the Queensland Court of Appeal, demonstrates the wide powers available to the Queensland Police Service under the Criminal Proceeds Confiscation Act 2002 (“the Act”). It also demonstrates the heavy burden which is placed upon any person who is in possession of property suspected to be tainted by association with criminal activity.

In the case of Henderson v Queensland, handed down on 16 December 2014, the High Court was asked to consider the application by Mr Henderson for the return of a sum of $598,325 found in his possession in 2002. Briefly, the facts were that the police found the sum of $598, 325 in a bag in the boot of a rental car in the possession of Mr Henderson, together with 23.3 grams of cannabis. Police seized the cash and it was subsequently declared forfeited under section 56 of the Act, which allows the Supreme Court to declare as forfeited any property which is “illegally acquired property”. Illegally acquired property, under the Act, is any property which constitutes the proceeds of, or is purchased by the proceeds of crime.

Mr Henderson’s explanation – which was neither contradicted by evidence, nor rejected by any level of appellate court – was that the cash was the proceeds of sale of certain jewellery given to him by his father. His father, an Eastern European immigrant, told Mr Henderson that the jewellery had been given to his great grandfather as gifts from wealthy Russians, in return for assistance in escaping Russia during the Revolution. However, expert evidence showed that the jewellery significantly post-dated the Russian Revolution. There was therefore a significant question as to the provenance of the jewellery.

The question for determination by the Queensland Court of Appeal, and by the High Court, was whether Mr Henderson had discharged his obligation under section 68(2) of the Act, to show that the money was not illegally acquired property. Both courts accepted that there was no criminality associated with Mr Henderson in respect to the money, or the jewellery. However, there was no way that he could establish that the jewellery itself was not derived from criminal activity, either by Mr Henderson’s father, or someone associated even earlier with the jewellery. Henderson was substantially hindered in this respect by the false statement made by his father as to the provenance of the jewellery. Consequently, the forfeiture order, against which Mr Henderson was appealing, remained in force.

This case demonstrates the difficulty of proving a negative. Where there is a doubt as to the origin or source of goods or money, the State is entitled to presume that it is illegally acquired property. The onus is then shifted to the owner of property to prove that it is not illegally acquired, which can – as in the case of Mr Henderson – be difficult, if not impossible to achieve. It also demonstrates the importance of documenting the history of assets. It may be fair to suggest that the Applicant in this case was in no way assisted by holding over half a million dollars in cash in the boot of a car, accompanied by 23 grams of cannabis.

Henderson v Queensland [2014] HCA 52

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