State of Queensland v Henderson - [2011] QSC 300

SUPREME COURT OF QUEENSLAND

CITATION:

State of Queensland v Henderson [2011] QSC 300

PARTIES:

STATE OF QUEENSLAND
(applicant)
v
JOHN WILLIAM HENDERSON

(respondent)

FILE NO:

SC No 1246 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

7 October 2011

DELIVERED AT:

Brisbane

HEARING DATES:

6, 7, 8, 9 & 10 June 2011

JUDGE:

Peter Lyons J

ORDERS:

The application for a forfeiture order is granted.1.

The application for an exclusion order is dismissed.2.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – FORFEITURE OR CONFISCATION – OTHER MATTERS – where money found in the boot of a car in a bag belonging to respondent – where applicant obtained restraining order under Criminal Proceeds Confiscation Act 2002 (Qld) in relation to the money – where respondent submitted money was proceeds of sale of jewellery given to him by his father – where applicant seeks forfeiture order under the Act – where respondent seeks exclusion order under the Act – where onus on respondent to prove jewellery and money not illegally acquired property – whether respondent is a ‘prescribed respondent’ who engaged in a serious crime related activity within the relevant limitation period – whether exclusion order should be made – whether forfeiture order should be made

Acts Interpretation Act 1954 (Qld), s 4, s 20

Criminal Proceeds Confiscation Act 2002 (Qld), s 8, s 13, s 15, s 16, s 17, s 18, s 22, s 28, s 29, s 56, s 58, s 65, s 68, s 69

COUNSEL:

M D Hinson SC, with J S Brien, for the applicant

J A McNab for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the applicant

Chan Lawyers for the respondent

PETER LYONS J: On Saturday 20 April 2002, police officers found, in the boot of a car parked at the Reef Palm Motel in Cairns, a blue sports bag belonging to Mr Henderson. In the bag was a large sum of money. There has been some debate about the amount, but on any view it was of the order of $600,000. That resulted in the State obtaining, on 10 February 2003 a restraining order under the Criminal Proceeds Confiscation Act 2002 (Qld) (Confiscation Act) in relation to $598,325 in Australian currency. The State now seeks a forfeiture order under the Confiscation Act, and Mr Henderson seeks an exclusion order under the same Act.

Background

Mr Henderson was born on 25 June 1955. The name he was given at birth was William Marijancevic. He gave evidence that he had changed his name to John William Henderson by deed poll.

Mr Henderson has two brothers, Joseph Marijancevic (Joseph) and Frank Marijancevic (Frank). He also has a sister, Dianne Murphy. Brief reference was made in the evidence to another sister, Lynette, who was said to have been estranged from the rest of the family since she was a baby.

Mr Henderson’s father was Franjo Marijancevic (Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State of Queensland v Henderson

Details

AGLC: State of Queensland v Henderson [2011] QSC 300
Case: [2011] QSC 300
Decision Date: 7 October 2011

CaseChat Overview and Summary

The matter before the court involved the State of Queensland and Henderson, focusing on the confiscation of proceeds of crime. The dispute arose from the discovery of money in the boot of a car, which was in a bag belonging to Henderson. The state had obtained a restraining order under the Criminal Proceeds Confiscation Act 2002 (Qld) concerning the money. Henderson contended that the money was the proceeds from the sale of jewellery given to him by his father and thus not illegally acquired. The state sought a forfeiture order, while Henderson sought an exclusion order under the Act. The court had to determine whether Henderson was a 'prescribed respondent' who had engaged in serious crime-related activities within the relevant period and whether an exclusion order should be granted. Additionally, the court had to decide whether a forfeiture order should be made.

The legal issues before the court involved the interpretation and application of the Criminal Proceeds Confiscation Act 2002 (Qld). Specifically, the court had to assess whether Henderson qualified as a 'prescribed respondent' under the Act and if his actions constituted a serious crime-related activity. The onus was on Henderson to prove that the jewellery and the money were not illegally acquired. The court needed to determine whether Henderson had engaged in a serious crime related activity within the relevant limitation period and if an exclusion order was appropriate. Furthermore, the court had to decide whether a forfeiture order should be granted in the state's favour.

The court found that Henderson did not successfully demonstrate that the jewellery and the money were not illegally acquired property. Consequently, Henderson did not qualify as a 'prescribed respondent' who had engaged in a serious crime-related activity within the relevant period. As such, the court dismissed Henderson's application for an exclusion order. However, the court held that the state had met its burden of proof, and therefore, granted the application for a forfeiture order. The court concluded that the money should be forfeited to the state.

The orders made by the court were that the application for a forfeiture order was granted, and the application for an exclusion order was dismissed. The money found in the boot of the car was to be forfeited to the state, and Henderson's application for an exclusion order was denied.

Orders

Orders of the court

The application for a forfeiture order is granted.1.

The application for an exclusion order is dismissed.2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	State of Queensland v Henderson [2011] QSC 300
PARTIES:	STATE OF QUEENSLAND (applicant) v JOHN WILLIAM HENDERSON (respondent)
FILE NO:	SC No 1246 of 2003
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	7 October 2011
DELIVERED AT:	Brisbane
HEARING DATES:	6, 7, 8, 9 & 10 June 2011
JUDGE:	Peter Lyons J
ORDERS:	The application for a forfeiture order is granted.1. The application for an exclusion order is dismissed.2.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – FORFEITURE OR CONFISCATION – OTHER MATTERS – where money found in the boot of a car in a bag belonging to respondent – where applicant obtained restraining order under Criminal Proceeds Confiscation Act 2002 (Qld) in relation to the money – where respondent submitted money was proceeds of sale of jewellery given to him by his father – where applicant seeks forfeiture order under the Act – where respondent seeks exclusion order under the Act – where onus on respondent to prove jewellery and money not illegally acquired property – whether respondent is a ‘prescribed respondent’ who engaged in a serious crime related activity within the relevant limitation period – whether exclusion order should be made – whether forfeiture order should be made Acts Interpretation Act 1954 (Qld), s 4, s 20 Criminal Proceeds Confiscation Act 2002 (Qld), s 8, s 13, s 15, s 16, s 17, s 18, s 22, s 28, s 29, s 56, s 58, s 65, s 68, s 69
COUNSEL:	M D Hinson SC, with J S Brien, for the applicant J A McNab for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the applicant Chan Lawyers for the respondent