Director of Public Prosecutions v Herlihy-Williams
[2003] TASSC 46
•2 July 2003
[2003] TASSC 46
CITATION: Director of Public Prosecutions v Herlihy-Williams [2003] TASSC 46
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
HERLIHY-WILLIAMS, Karrina Beth
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 335/2002
DELIVERED ON: 2 July 2003
DELIVERED AT: Hobart
HEARING DATES: 14 – 16 May, 18 June 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Orders for compensation, reparation, restitution, for forfeiture and other matters relating to disposal of property – Forfeiture or confiscation - Conviction for money laundering – Forfeiture of money seized.
Crime (Confiscation of Profits) Act1993 (Tas), ss11, 16, 18, 67.
Director of Public Prosecutions v Delaney 142/1997, followed.
Aust Dig [927]
REPRESENTATION:
Counsel:
Applicant: M A Stoddart
Respondent: M I Taylor
Interested Parties: K L Baumeler
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Wallace Wilkinson & Webster
Interested Parties: Butler McIntyre & Butler
Judgment Number: [2003] TASSC 46
Number of Paragraphs: 16
Serial No 46/2003
File No 335/2002
DIRECTOR OF PUBLIC PROSECUTIONS
v KARRINA BETH HERLIHY-WILLIAMS ff
REASONS FOR JUDGMENT SLICER J
2 July 2003
The applicant seeks forfeiture of tainted property in accordance with the Crime (Confiscation of Profits) Act 1993 ("the Act"), ss11(1)(a) and 16. Two other persons, the husband and father-in-law of the respondent, respectively claim interest in portion of that property, pursuant to the Act, s18.
The respondent was convicted of the crimes of selling a prohibited plant and possessing a narcotic substance, contrary to the Poisons Act 1971, ss47 and 48, and engaging in money laundering, contrary to the Act, s67(2).
On 31 July 2001, police went to the home of the respondent and her husband, Dwayne John Williams, and following search, seized a quantity of Indian hemp found in different parts of the house. The major part of the seizure of approximately 1.8kg was found wrapped in packages of between 35 and 410gms in a locked outside room. Depending on the manner of sale, the value of the Indian hemp was estimated to be between approximately $9,000 (if sold in 1 pound lots) and $19,000 (if sold in small units). In addition, money amounting to some $15,380 was seized which was the subject of the count alleging the money laundering and which is the subject of this application. The finding of the jury permits a finding that all, or a substantial portion, of the money was, in the terms of the indictment:
"… received from unlawful activity, namely the sale of narcotics and/or prohibited plants …".
The money was located in five discrete bundles at three locations. The location and "make up" of the bundles are significant to the determination of the respective applications.
| Location | Amount | Make Up |
| Handbag of respondent | $460 | Mixed notes |
| Handbag of respondent | $1,220 | Notes of $20 |
| Couch in lounge room | $850 | Notes of $50 |
| Bedroom drawer | $3,000 | Notes of $20 |
| Bedroom drawer | $9,850 | 10 Notes of $100 177 Notes of $50 |
No dockets or records consistent with the purchase or sale of an illicit substance were discovered.
The sum of $460 found in the handbag was consistent with everyday use and was kept separate from the other money. During their deliberations, the jury asked whether they were required to find the possession of all moneys stated in the particulars of the indictment before convicting of the crime of money laundering. When told that such was not necessary, they shortly thereafter returned a unanimous verdict of guilty. That question, the verdict itself, and my own assessment of the evidence, supports the conclusion that the sum of $460 formed no part of the tainted money and it will be disregarded.
The respondent did not give evidence at trial, nor on the hearing of this application. She called at trial, as a witness, her father-in-law, Stanley John Williams, who claimed that he had lent a sum of $8,000 to his son shortly before the police search which, by inference, comprised some of the money found in the bedroom drawer.
Dwayne Williams was absent from the home on 31 July 2001 and although charged, the Crown did not proceed with its indictment. He gave evidence in support of his claim at the hearing of this application, but not at the trial of the respondent. He claims an interest in the sum of $1,220 found in his wife's handbag.
The principles relevant to the determination of proceedings have been considered in Director of Public Prosecutions v Delaney 142/1997 and require no restatement. There are, in effect, three applications, namely:
(1)that of the applicant for the whole of the money in accordance with the Act, s16, which requires that the Court be satisfied that "the property is tainted in relation to the offence" and in the consideration of forfeiture have regard to:
"6 ¾ (2) …
(a)the use that is ordinarily made, or was intended to be made, of the property; and
(b)any hardship that is likely to be caused to any person by making the order."
(2)an application by Stanley Williams, a person claiming interest in the sum of $8,000, who can satisfy the Court that he is a person who:
"(5) If, on an application under subsection (1), a court is satisfied that the applicant ¾
(a)was not a party to the commission of the offence in reliance on which the forfeiture order is sought or was made; and
(b)acquired the interest in the property in good faith and for sufficient consideration; and
(c)acquired the interest in the property ¾
(i) before the commission of the offence in reliance on which the forfeiture order was made; or
(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property had become tainted property."
(3)an application by Dwayne Williams for the sum of $1,220 in terms identical to that stated above.
In some cases the question of differing requirements of proof might determine outcome, although the rejection of evidence (especially in the case of money) supporting a s18 application might enhance a conclusion that the property is tainted within the meaning of s16. In this case, I will accept the proposition that the applicant must first show the money is tainted and, if so, whether the persons interested can show exception. There is, in this case, a contradiction, since if the applicant can show the money to be tainted by reason of money laundering, it, rather than property obtained by use of the money, is subject to forfeiture. The contradiction will be met by accepting the proposition that it is necessary for the applicant to show that the money seized:
(1)was derived from unlawful activity;
(2)the portion seized was not mixed with money lawfully held; and
(3)that the claimed portion of mixed money had not been derived from lawful activity.
That approach advantages the persons claiming interest.
Claim of loan
A short answer to the claim of Stanley Williams of a loan of money is that it could not amount to "an interest" in the actual money. Its property passed to Dwayne Williams who has made no claim to it and the interest of Stanley Williams remains one of civil liability. But, as such, a finding that the actual sum of $8,000 was not "tainted" would indirectly advantage him, since it would be returned to the respondent and, upon return, could be repaid. Accordingly, his evidence as to provenance will be accepted as relevant. The sum claimed, namely that of $8,000 could only pertain to the amount of $9,850 found in the bedroom drawer. Stanley Williams gave evidence at trial that the money was a result of a "superannuation payout" and intended to assist in the payment of his own funeral expenses. However, in light of a provision made by a subsequent employer, the money was not required and he decided to withdraw it from his bank. He said that between 25 and 30 June, he had withdrawn money from his bank. Bank records tendered by the applicant on the hearing of this application showed that the sum of $8,732 was deposited into the bank account of Stanley Williams on 21 June 2001 and the sum of $8,700 withdrawn on 29 June. He said that on the way home, his son, who had accompanied him to the bank for protection, had asked to borrow the sum which he stated to be $8,000. He gave no reason for the withdrawal, other than a distrust of the banking system, but rather that in taking it, he needed to find "a good hiding spot". That evidence, favourable to the respondent, is implausible, especially so, given his additional attempt to explain the presence of other money at the respondent's home by the suggestion of large "cash" wedding gifts said to have been made in May 2001. In cross-examination, he was unable to state the "money mix" believing the percentage of $100 notes to have been between 50 and 80 per cent. His account was weakened by his admitted failure to tell anyone in authority of his claim until the date of trial in May 2003. A good citizen, deprived of hard earned entitlement, might be expected to complain of arbitrary seizure by officers of the State. Even a concerned, but caring, father might have enquired about repayment, but no such claim for repayment was averred.
Dwayne Williams, in his evidence on the hearing of these applications, attempted to corroborate his father's account. His initial belief, later resiled from, was that the withdrawal had been made in mid-July. His evidence generally was contradictory and evasive. Little of his account is accepted and will be separately considered. But central to this determination is the problem of the amount of money found in the drawer. The only "bundle" which could comprise the "loan" of $8,000 was that totalling $9,850 found in the bedroom drawer. The explanation given by Dwayne Williams was that he had used some of the sum loaned, and kept it in the drawer, as a "float" and borrowed from and added to it as the need arose. His earned income, within the time available to raise the sum to $9,850, and the improbability of replacement so as to retain the equilibrium of the percentage mixture of the notes, belies that claim. It is unlikely that any withdrawal (when necessary) was met with an exact replacement, and more unlikely that the increase, by replacement, of some $1,850 within one month occurred.
Of similar significance is his claim that despite using the drawer regularly for the purpose of taking and replacing money from the bundle of $9,850, he remained unaware of the existence of the bundle of notes amounting to $3,000 found in the same drawer. His further claim that he was totally unaware of his wife's activities in keeping a large quantity of Indian hemp and engaging in its commercial distribution is difficult to accept, although his claim might be explicable as an attempt of consistency to his account that he was unaware of the other sum of money and to enhance his father's claim of interest in the amount of $8,000.
There was inconsistency between his account that his father had counted out the sum of $8,000 from the paper bag and his father's account of the amount of money withdrawn from the bank. The inconsistency might be explained by the absence of detail provided in the account of the father, but has the characterisation of adjustment, given the difference between the date of trial and the giving of evidence in support of this application.
Claim of handbag money
Dwayne Williams claimed that the sum of $1,220, seized from his wife's handbag, had been in his wallet on the morning before seizure. He said that it had been left on his bedside table and was the product of savings for repairs (tyres) to his motor vehicle kept over a six month period. He could not explain how the money, kept in a wallet alongside his bed, was found in the respondent's handbag, other than ordinary domestic activity and the evidence of police that some portion of the money had been found in a wallet. But the composition and location of the money and the correlation with the evidence of the retail or street price of marijuana belie the claims of the "interested parties". The presence of watches and items of clothing recently stolen, corroborate the applicant's contention that the money seized from the handbag was:
(1)the product of "retail" sales;
(2)not the product of a loan or careful saving.
Conclusion
Accepting, only for the purpose of this determination, that in the case of money in specie, the applicant must show:
(1) it did not come from another source;
(2) if mixed, an identified sum claimed was not derived by provision of another;
(3) it was, proven on its own evidence, tainted.
The conclusion is that the sum of $14,920 is liable to forfeiture.
The order is, consistent with the conviction of money laundering, that the sum be forfeited.
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