Henderson v Queensland

The High Court of Australia considered an appeal by Mr Henderson against a forfeiture order made under the *Criminal Proceeds Confiscation Act 2002* (Qld). The State sought forfeiture of money found in Mr Henderson's possession, which represented the proceeds of the sale of jewellery. Mr Henderson sought an exclusion order under s 68(2)(b) of the Act, arguing the money was not "illegally acquired property". The central dispute concerned the extent of the onus placed upon Mr Henderson to prove the jewellery was not illegally acquired by his deceased father, from whom he received it as a gift.

The legal issues before the Court were whether Mr Henderson, in seeking an exclusion order, was required to prove only that the jewellery was not the proceeds of illegal activity on his part, or whether he also bore the onus of proving that the jewellery was not illegally acquired by his father. This involved interpreting the definition of "illegally acquired property" under s 22(2)(a) of the Act, which includes "proceeds of dealing with illegally acquired property", in conjunction with the requirements of s 68(2)(b) concerning the applicant's burden of proof.

The Court reasoned that the text of s 68(2)(b), read with s 22(2), required Mr Henderson to demonstrate that the property in question was not illegally acquired property. Given that the jewellery was a gift and not acquired for consideration, s 26 of the Act did not apply to sever any taint of illegality. Therefore, if the jewellery had been illegally acquired by Mr Henderson's father, it would retain that character even after being gifted to Mr Henderson. The Court held that Mr Henderson's contention that he only needed to prove the jewellery was not the proceeds of his own illegal activity involved an impermissible interpolation of the statutory text. The Court acknowledged a potential tension between this interpretation and the protective objectives of the Act, particularly where the ultimate origin of property is unknown, but concluded that this tension could not be resolved by expanding the scope of exclusion orders beyond the statutory language.

The appeal was dismissed with costs.