R v DUDLEY

[2017] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v DUDLEY

[2017] SADC 139

Reasons for Ruling of His Honour Judge Cuthbertson

13 December 2017

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - FORFEITURE AND LIKE ORDERS

Application for forfeiture of cash located in possession of drug offender.

Held:

1. Evidence of respondent that money was legitimately obtained accepted.

2. In the alternative, the cash is not the instrument of any crime resulting in a conviction.

3. Application for forfeiture refused.

Criminal Assets Confiscation Act 2005 ss 7, 47 & 220, referred to.

R v DUDLEY
[2017] SADC 139

1. This is an application for a forfeiture order pursuant to s 47(3) of the Criminal Assets Confiscation Act 2005 (‘the Act’).

   s 47(3)A court may, on application by the DPP, make an order (a “forfeiture order”) that property specified in the order is forfeited to the Crown, if—

   (a)a person has been convicted of one or more serious offences the court is satisfied that the property is an instrument of one or more of the offences…

2. Instrument is defined in the Act under s 7(1):

   7(1)For the purposes of this Act, the following rules apply when determining whether property is proceeds or an instrument of an offence:

   (a)     property is “proceeds” of an offence if it is—

   (i) wholly derived or realised, whether directly or indirectly, from the commission of the offence; or

   (ii)partly derived or realised, whether directly or indirectly, from the commission of the offence,

   (b)    property is an “instrument” of an offence if it is—

   (i)used in, or in connection with, the commission of an offence; or

   (ii)intended to be used in, or in connection with, the commission of an offence …

   (c)property becomes proceeds of an offence or an instrument of an offence (as the case requires) if it is—

   (i)wholly or partly derived or realised from the disposal of, or other dealing with, proceeds of the offence or an instrument of the offence; or

   (ii)wholly or partly acquired using proceeds of the offence or an  instrument of the offence …

3. The respondent was sentenced on 28 July 2017.  He had pleaded guilty to one count of Trafficking in a Controlled Drug.  On 22 April 2016 police stopped a vehicle he was driving.  A co-offender, P, was also in the car. 

4. P was found to be in possession of 4.87 g of methylamphetamine.  Police also located a mobile phone with text messages indicative of trafficking in methylamphetamine from about 13 January 2016.  In P’s handbag police found more indicia of sale including unused resealable plastic bags and a small green bottle with a pharmacy label in the respondent’s name.

5. On the respondent’s person police found $50 in cash with a further $660 cash in his wallet.

6. Upon searching his house, police found a safe containing three plastic bags containing 4.95 g of methylamphetamine, $2,502 in cash and another plastic bag with white residue.  Police also found 28 sets of digital scales and a number of unused plastic resealable bags in the lounge.

7. The trafficking in relation to the respondent relates to the 4.95 g of methylamphetamine found in the bedroom of the house. The respondent was sentenced on the basis that he bought the drugs for P knowing that she would sell them. There was no evidence that the respondent would profit from P’s sale of the drugs, or that he would directly sell them himself.

8. The prosecution makes application pursuant to s 47(3) of the Act to forfeit all the sums of cash that were located.

9. The cash cannot be the proceeds of the sale of the 4.95 g of methylamphetamine because the methylamphetamine was still in possession of the respondent and there is no evidence that any sale of it had taken place.

10. There was no evidence of past sales made by the respondent but if there was, that is not the subject of the charge which remains the 4.95 g of methylamphetamine in the safe.

11. S 220 of the Act places an onus of proof on the applicant to prove the cash is an instrument used in, or in connection with, the commission of the offence. This is to be proved on the balance of probabilities.

12. S 47(5) of the Act requires the Court to presume “property was used in, or in connection with, the commission of the offence” unless evidence is given which tends to show that the property was not used or in connection with the commission of the offence.

13. The respondent gave evidence that the sums of $50, $660 and $2,502 the subjects of this application, were lawfully obtained. He argued that the larger amount was composed of the proceeds of two car sales and poker machine winnings. The $50 and $660 was withdrawn from his bank after he had been paid his pension. The respondent provided receipts from the Maylands Hotel, a Centrelink income statement and transfer documents relating to the sale of a Mitsubishi Magna and a Ford Laser.

14. The applicant submitted that it stands to reason that the respondent would have lost more than he won gambling and therefore it cannot be accepted that the money found in the respondent’s bedroom was composed gambling winnings. Additionally, the respondent made admission at the hearing that some of the money in his bedroom might in the future be used to purchase drugs, or loaned to P for her to purchase drugs. The inference being that that then colours all of the money as an instrument used in, or in connection with, the commission of an offence.

15. The offence was one of trafficking. The respondent’s evidence was that he might buy or loan $50 at a time to satisfy P’s drug addiction.  That concession is not sufficient to justify the forfeiture the money (the instrument) must be an instrument of an offence charged leading to a conviction and not some potential offence not charged.

16. I am not satisfied that the cash is an instrument used in, or in connection with, the commission of the offence of trafficking. Nor can I be satisfied that the cash was “intended to be used in, or in connection with, the commission of an offence”.[1] On the balance of probabilities, the respondent has discharged the onus under s 47(5) of the Act. I accept his evidence on the balance of probabilities.

    [1] s 7(b)(ii) of the Criminal Assets Confiscation Act 2005.

17. I decline to make an order for forfeiture.