State of Queensland v Hayes[2013] QSC 10

SUPREME COURT OF QUEENSLAND

Introduction

1. There are two applications before the court; an application for forfeiture pursuant to the Criminal Proceeds Confiscation Act 2002 (Qld) (“the Act”) brought by the State of Queensland and an application for exclusion in relation to the property sought to be forfeited by the State brought by the respondent, Steven Michael Hayes.

2. On 3 April 2008, the applicant filed an Originating Application seeking to restrain certain property, including $104,080 in cash. On 16 April 2008, Martin J granted a restraining order in respect of the cash. On 12 May 2008, the applicant filed an application for forfeiture pursuant to ss 56(1) and 58(1)(a) of the Act in relation to the property restrained under s 28 of the Act.^[1]

3. On 30 June 2008, the respondent filed an application pursuant to s 68 of the Act for exclusion in relation to the property sought to be forfeited by the State and seeks an order under s 69 of the Act to remove the effect of the restraining order.

Relevant legislative provisions

4. The application for a forfeiture order was made in respect of property restrained pursuant to an application under s 28(3)(a) of the Act which identified the respondent as a “prescribed respondent”, that is, “a person suspected of having engaged in one or more serious crime related activities”.

5. As mentioned, the forfeiture order is sought pursuant to s 58(1)(a) of the Act which relevantly provides:

“58  Making forfeiture order

(1)The Supreme Court must make a forfeiture order if the court finds it is more probable than not that –

(a)for property restrained because of an application relating to property mentioned in section 28(3)(a) or (b) – the prescribed respondent mentioned in that application engaged during the limitation period in a serious crime related activity; or

…

(4)Also, the court may refuse to make the order if the court is satisfied it is not in the public interest to make the order.

(5)A finding of the court under subsection (1) –

(a)need not be based on a finding about the commission of a particular offence; and

(b)may be based on a finding that some offence that is a serious crime related activity was committed.

(6)Also, the raising of a doubt whether a person engaged in a serious crime related activity is not of itself enough to avoid a finding on which a forfeiture order may be made.

(7)The forfeiture order must state the property to which it applies. 

Note –

Property may be excluded from the effect of a forfeiture order if it has been excluded under section 47, 49 or 68.

(8)The court may make the ancillary orders the court considers appropriate when it makes a forfeiture order or at a later time. 

Example –

ancillary orders for facilitating the transfer to the State of property forfeited to the State

(9)In this section –

limitation period –

(a)means the period of 6 years before the day the application for the order is made; and

(b)includes periods before and after the commencement of this section.”

6. Pertinent to the inquiry under s 58(1)(a) is whether the respondent whose property was the subject of a restraining order under s 28(3)(a) engaged during the limitation period in a “serious crime related activity”. “Serious crime related activity” is defined in s 16 of the Act to mean anything done which was at the time a “serious criminal offence”.  The latter term is defined in s 17 of the Act to include “an indictable offence for which the maximum penalty is at least 5 years imprisonment”.  An indictable offence “includes an indictable offence dealt with summarily.”

7. Pursuant to the Act, the court is empowered to make an exclusion order once it has been determined that property is liable to be forfeited. The basis upon which such an order is made is set out in s 68(2) of the Act, pursuant to which the court must make an exclusion order if it is satisfied that the applicant for the order has or, apart from the effect of a forfeiture order, would have, an interest in the property the subject of the application and that it is more probable than not that the property the subject of the application is not illegally-acquired property.  By s 70 of the Act, on the making of an exclusion order excluding an interest in property from an application for forfeiture, the restraining order ceases to have effect in relation to the excluded interest.

8. The concept of “illegally acquired property” is central to the question of whether an exclusion order should be made under s 68 of the Act.  Property is “illegally acquired property” if it is all or part of the proceeds of an illegal activity (s 22(1)).  The term “illegal activity” includes not only “a serious crime related activity”, but also “an act or omission that is an offence against the law of Queensland or the Commonwealth” (s 15). “Proceeds” in relation to an activity includes property and another benefit derived because of the activity, by the person who engaged in the activity, or by another person at the direction or request, directly or indirectly, of the person who engaged in the activity (s 18). 

9. By virtue of s 8 of the Act, proceedings under the Act are not criminal proceedings; questions of fact must be decided on the balance of probabilities; the rules of evidence are those applying in civil proceedings; and, to the extent that they are not inconsistent with the Act, the Uniform Civil Procedure Rules 1999 (Qld) apply.

The State’s application for forfeiture

10. The application for a forfeiture order made pursuant to s 58(l)(a) of the Act requires it be demonstrated on the balance of probabilities that the respondent, whose serious crime related activities formed the basis of the restraining order under s 28(3)(a), engaged in “serious crime related activity” during the limitation period, being the period of six years before the day the application for the order was made. There was no dispute that the relevant limitation period under s 58(9) of the Act is six years before 12 May 2008; ie six years commencing 12 May 2002.

11. Nor was there any dispute that during that limitation period the respondent committed offences which constituted “serious criminal offences” for the purposes of s 16 of the Act.  The respondent was convicted of three offences in contravention of s 9 of the Drugs Misuse Act 1986, being possession of a dangerous drug (cannabis sativa) on 21 June 2005, 18 October 2005 and 24 October 2005.  Although the charges were dealt with summarily, the maximum penalty applicable in respect of such offences was not more than 15 years imprisonment.  (That maximum still applied where, in a case of possession of cannabis, the relevant drug possessed was in an amount of less than 500 grams as was the case here.)  Accordingly, each conviction qualified as a “serious criminal offence”. 

12. The applicant submitted that, applying s 58(l)(a) of the Act, it was sufficient for a forfeiture order to be made that it be demonstrated that the respondent engaged during the limitation period in “serious crime related activity” and that it was in the public interest that a forfeiture order be made in the present circumstances. These requirements being satisfied, the State was prima facie entitled to succeed in respect of its application for a forfeiture order in respect of $104,080 cash, presently the subject of restraint.

13. On behalf of the respondent, it was submitted that, while it was conceded that the respondent had committed “serious criminal offences” as defined by the Act, it was disputed that he engaged in “serious crime related activity” as that term is defined in the Act. In that regard, it was contended that s 58(1)(a) ought not to be construed as meaning that, provided a serious criminal offence could be identified within the limitation period, it was sufficient, “for the purpose of establishing a reasonable suspicion, to assume that any property subsequently found in the possession of the former offender is the product of serious crime related activity”.  The respondent submitted that for the “serious crime related activity” to be made out, the applicant was required to prove that it was “more probable than not that some form of property, financial benefit or proceeds of sale are to be accumulated over time resulting from the crime in question”.  The respondent contended that there was limited evidence before the court about the nature or factual basis regarding the serious criminal offences committed by the respondent and no indication of commercial element regarding any of the possession of dangerous drug charges.  Accordingly, it was argued that the application for forfeiture had not been made out, as the applicant had not demonstrated on the balance of probabilities that there was “a nexus or connection between the money in question and the serious criminal offence”.

14. The respondent relied upon the following statement of Keane JA (with whom the other members of the court agreed) in Meredith v State of Queensland [2007] 1 Qd R 334; [2006] QCA 465 at [25]-[26]:

“Section 58(1)(a) of the Act contemplates that a forfeiture order must be made in respect of restrained property where the State demonstrates that it is more probable than not that the suspect has engaged in serious crime related activity.  The State emphasised that there is no burden on the State to show a relationship between the demonstrated serious crime related activity and the property to be forfeited.  But that does not mean that such a relationship is irrelevant for the purposes of the forfeiture order, much less that, as the State contends, the making of a forfeiture order under s 58(1)(a) of the Act is ‘a purpose wholly unrelated to property’.

An exclusion order may be made under s 65, s 66 and s 68(2) of the Act.  Under such an order, property will be excluded from forfeiture upon it being shown to be more probable than not that the property in question is not ‘illegally acquired property’.  The provisions for the making of an exclusion order on this basis show that s 58(1)(a) does not operate independently of any relationship between illegal activity and the property acquired as a result of that activity.” (footnotes omitted).

15. In contending that the “serious criminal offences” committed by the respondent were not of themselves of a kind where an inference might reasonably be drawn or suspicion reasonably formed that there was a nexus between that offending and the money in question, reliance was placed on State of Queensland v Kahn Nhat Bui [2005] QSC 292. The respondent’s argument confused the requirements of ss 28 and 58(1)(a).  An application under s 28 must be supported by an affidavit from a person identified in the section, which affidavit must (by virtue of s 29(1)), inter alia, state both that the person identified as the “prescribed respondent” is suspected of having engaged in one or more serious crime related activities, and the reason for the suspicion.  The court is then required by s 31 to make a restraining order if, after considering the application and the affidavit, it is satisfied that there are reasonable grounds for the suspicion on which the application is based.  That issue is distinct from the issue for determination in respect of the application for forfeiture under      s 58(1)(a).

16. Nor does s 58(1)(a) require that the applicant demonstrate a nexus as contended by the respondent. The definition of “serious crime related activity” referred to in s 58(1)(a) of the Act explicitly provides that it means “anything done by a person that was, when it was done, a serious criminal offence”. Nothing in Meredith indicates a contrary interpretation of s 58(1)(a).  However, while there is no burden on the applicant to show a relationship between the serious crime related activity and the property to be forfeited, as stated in Meredith, it does not follow that that relationship is irrelevant for the purposes of the forfeiture order because, where an exclusion order is sought under ss 65, 66 and 68(2) of the Act, property will be excluded from forfeiture upon it being shown to be more probable than not that the property in question is not “illegally acquired property”.  As Keane JA remarked in Meredith, the provisions for the making of an exclusion order on that basis show that “s 58(1)(a) does not operate independently of any relationship between illegal activity and the property acquired as a result of that activity”.

17. Thus, unless the respondent demonstrates that an exclusion order should be made, the applicant, having satisfied the requirements of s 58(1)(a), is entitled to the forfeiture order sought.

The respondent’s application for exclusion

18. The respondent argued that an exclusion order ought to be made as he had prima facie demonstrated his lawful interest in the seized money and there was no proper basis upon which it could be found that the seized money was “illegally acquired property”. The respondent sought an exclusion order under s 69(1) stating the extent and, if necessary, the value of the respondent’s interest in the property and excluding it from the application for the forfeiture order. Thus, the respondent sought either the full amount of the money or that part of the lump sum be returned to him.

19. While it was conceded that the drug offences committed on 21 June 2005, 18 October 2005 and 24 October 2005 were convictions for serious criminal offences, it was submitted that the respondent did not derive any property or benefit therefrom.  Additionally, “there was no allegation of possession for commercial purposes” so “no direct inference” could be drawn that “any money was acquired from the illegal activity within the meaning of the Act.”  Further, the respondent argued that he had credible explanations as to the source of the cash in question that ought to be accepted.  It was irrelevant for present purposes that the explanations raised issues which might arise relating to the Taxation Office, Centrelink and/or the Office of Fair Trading.

20. The principal question thus is whether the respondent’s explanation as to how the sum of $104,080 in cash came to be accumulated should be accepted. It was not disputed that the onus is on the respondent to demonstrate that he is entitled to an exclusion order.

Background to the seizure of the $104,080 in cash

21. On 5 February 2008, the respondent was intercepted in a Nissan Coupe, registration number 604 KPX, which was registered to a Shane Coombes. During a search of the vehicle police located $2,280 in cash. They also located a quantity of shotgun shells in a chamois container.

22. Subsequently, a search was conducted of the respondent’s house at Parkinson in the presence of the respondent. Also present was the respondent’s girlfriend, Maria Babic, their infant child and the respondent’s son. In addition to the $2,280 in cash found in the vehicle, a total $101,800 in cash was seized by police from the Parkinson property, comprising:

(a)$11,100 from a box in the wardrobe in a “baby’s room”;

(b)$74,700 from a gift bag located in the master bedroom; and

(c)$16,000 from a bag in the garage.

23. In total an amount of $104,080 in cash was seized by the police.^[2]

24. The respondent claimed that the $104,080 cash which was seized by the police was derived from the following sources:

(a)savings from employment;

(b)a payment from superannuation;

(c)a cash gift of $50,000 from his father ($25,000 of which was a gift to his brother);

(d)cash returned by the Queensland Police Service;

(e)the proceeds of the sale of motor vehicles;

(f)the proceeds of the sale of a gold necklace.

25. The applicant disputes these sources of income as being credibly able to be relied upon as being the source of the funds.             

Money found in the Nissan Coupe

26. Senior Constable Vickers deposed that, when intercepted, the respondent stated that he had paid cash for the Nissan and that the money located in the Nissan was money obtained from the sale of a motor vehicle for $6,000 to a person called Shane (whose last name he could not remember). When asked about the shotgun shells, the respondent said he knew nothing about that as he had only recently purchased the vehicle. He reiterated this a number of times during the search of the Parkinson property.^[3]

27. However, the respondent’s affidavit evidence was that he had not bought the Nissan but was in the process of purchasing it from a Shane Coombes. He contended that part of the money located in the vehicle was money he had withdrawn from a bank account shortly before he was intercepted, the remainder was to be used as a deposit for the purchase of the Nissan. Yet in cross‑examination, the respondent conceded that none of the money had been withdrawn by him from his bank account.  Instead he said that about $1,100 of the money was the rent money for the month that had been withdrawn by Maria Babic from her bank account.  He explained the statement in his affidavit that he had withdrawn money on the basis that he thought of it as their joint money, from “mine and Maria’s bank account”.

28. As for Vickers’ account of what the respondent told him, the respondent claimed in cross-examination that it was a misunderstanding. He accepted that he had mentioned Shane’s name and that at the time he said he did not know his surname, but maintained that he was given the Nissan for a few days to see if he wanted to purchase it. He was driving the car to the mechanic’s to see if it was worth purchasing when he was stopped by police. The respondent also said that, in addition to the rent money in the car, he had about $600 to pay the mechanic. The respondent did not seek to have Vickers cross‑examined to challenge his evidence, although he was made available. 

29. The inconsistencies in the evidence make it difficult to form a view as to the amount and source of the money found in the car. Given that the respondent gave differing versions and did not seek to cross-examine Vickers on his evidence, I am unable to conclude on the balance of probabilities that the respondent’s account as to the source of the money found in the car should be accepted.

Money found in the baby’s room

30. In respect of the $11,100 found in the first room searched by police, the respondent’s affidavit evidence was that the money “was savings for Maria and my child” and that he would add to this periodically so that they had enough for the baby at all times. The money also included the baby bonus received from the government.

31. Vickers deposed in his affidavit to statements made by the respondent at the time of the search as borne out by the field tape of the search and the transcript thereof which were exhibited to his affidavit. The respondent was recorded as stating, in respect of the money found in the “baby’s room”, “that’s our saving money”. He also referred to it as “our pocket money” and “our deposit money”. He stated, “It’s just our saving money, we’ve been saving it for years” and that he had been saving up to buy another house near his Dad.^[4]  He said that over the years he would put away one or two thousand from work as a labourer.  He estimated that there was “probably 20,000” but later said it was maybe $11,000; he had not counted it for a while.

32. When cross-examined, the respondent stated that the money found in the “baby’s room” was actually from the baby bonus and some money that Maria Babic had received from her parents. (Ms Babic did not provide corroborative evidence). He maintained that the money was not really anything to do with him. He did not recall saying it was “pocket money” to the police officer, nor saying it was “savings” intended to buy land. He denied saying that he had saved the money over a period of years.

33. The respondent also initially claimed during cross-examination he was not aware he was being recorded, but when the portion of the transcript recording the start of the search (giving the respondent the usual warnings as to his rights) was put to him, he instead maintained that he was not aware what he said was going to be “taken as a statement”. He then added that he did not take much notice of what was being said and was distracted because he had his one year old baby present, who “was screaming … she was having a bit of a drama ’cause they wouldn’t let her mum feed her and there was … a bit of a panic at the time”. The recording of the warnings which was played in court does not support the respondent’s claim that his child was screaming or crying at that stage of the search. Upon listening to a portion of the field tape of the seizure, the respondent stated that he told police that the money was savings from his work as a labourer because he did not want them to take the baby’s money away or get Ms Babic in trouble. It is not readily apparent why such an explanation would have caused such a result. In any event, the respondent’s evidence concerning the source of the money found in the room is inconsistent and his explanations for those inconsistencies are unsatisfactory. In the circumstances, I am unable to accept the respondent’s evidence and am unable to reach a conclusion as to the source of that money.

Money found in the garage

34. Vickers’ affidavit evidence was that during the search of the garage, police located in a backpack on the garage floor an envelope containing a large quantity of cash. The transcript of the field tape of the search records that, when Vickers asked the respondent how much money it contained, he indicated $16,000 and that he “sold a car”. He then repeated that the money was from the sale of a car about four or five weeks prior, which he described as a Holden VL Turbo. The respondent said the buyer was a friend of a friend called Rod (he did not know his last name) and added that he had “been away from home” and that he “just put it away”.^[5]

35. In cross-examination the respondent said he could not recall saying that the money was from the sale of a car and a different explanation for the presence of the money was given in the respondent’s affidavit. The respondent stated that the $16,000 was for the purchase of the Nissan from Shane Coombes. A copy of a vehicle summary sheet indicating Shane Coombes to be the owner of a Nissan 180 SX Coupe as at 25 May 2008 was exhibited to the respondent’s affidavit (document 24). Counsel for the applicant objected to exhibit 6 of the respondent’s affidavit, which purported to be a signed demand by Shane Coombes for payment of $16,000 for the purchase of the Nissan, on the basis that it was hearsay evidence.  The respondent indicated that he had tried to get in contact with Mr Coombes, and understood he was now in prison.  The respondent suggested that was the reason why Mr Coombes has not applied for the return of this money (or the car).  No details were provided as to efforts to locate Mr Coombes.  In those circumstances, the applicant’s objection to the admission of the exhibit is upheld. A similar objection to exhibit B to the respondent’s affidavit (document 24) is also upheld.

36. In cross-examination, the respondent accepted that he did not mention Shane’s name to the police during the search and said that that was because he “had only recently met the guy” and “didn’t want to get him involved”. Although the respondent claimed not to have already bought or paid for the Nissan, as already mentioned, the transcript of the search records that, when the respondent was questioned as to the presence of shotgun shells found in the Nissan, the respondent replied that the “bullets in cars, nothing to do with me, obviously they were lying in the car, you know, nothing else to do with me and I just bought the car a few weeks ago”.^[6] Given the conflicting statements made by the respondent, I am unable to find that the $16,000 found was for the purchase of the Nissan as now claimed.

Money found in the master bedroom

37. The transcript of the field tape of the search indicates that after locating the money in the “baby’s room” Vickers asked the respondent whether there was any other money in the house. The respondent indicated that there was probably another “50,000 which was his money and his father’s money”. Police located a quantity of cash in a gift bag in the walk-in robe. The respondent stated there was “probably thirty of mine and thirty of Dad’s” and that “it’s my Dad’s money, he left it in a will”.^[7]  When discussing the money found in the master bedroom the respondent also stated that $24,000 of it had only just been handed back to him from the Indooroopilly Police Station.  He also later stated that “some of the money is ours that … me and Maria are really saving money” and mentioned “money from my car” and “money my Dad gave me a couple of weeks ago”.  During the counting of the cash, the respondent stated, “that’s from my Dad, 30 of that is mine and the rest is my Dad’s”.  When questioned further, he confirmed that there was “probably” $60,000 in total and that $30,000 was his money (“roughly half”) and the rest was his Dad’s.^[8]  Yet when asked again how much saved cash there was and where it had come from he stated there was “roughly” $60,000 and that it came “just from my father”.^[9]  The money was counted in the respondent’s presence and totalled $74,700. 

38. In his affidavit, the respondent stated that the money had not been there long and explained the reason for the cash was so that he could easily access it to buy cars at auctions (which his friend Darren Guy, a panel beater, would help repair). He stated that the bulk of the money came from a cash gift made by his father shortly before he died. The remainder came from savings that he had been putting together with the intention of starting a new business.

Inheritance from father

39. As already stated, during the search the respondent made statements that he had received $30,000 from his father. He said he went and picked up the money from the safe in his father’s house on Macleay Island.  He said he had to go over and shut the house up.  He also said that it was when his father was dying that he went over.  He stated that he was in charge of the estate and was the executor of his father’s will.  When further questioned about how much his father gave him, he answered “oh beats me, oh, probably 30 something like that” and that he was going to split it with his brothers.^[10] 

40. In his affidavit (document 24), the respondent referred to previous affidavits wherein he deposed to receiving $50,000 in cash from his biological father, Ronald George Hong, shortly before his death (on 1 December 2007). He stated that money was to be divided equally between him and his biological brother (Errol) upon his release from prison. The respondent’s affidavit evidence was that he was one of 17 children and that his father had provided “each one of us with a gift when he died so that we were all looked after” which “was as a repayment for not looking after us during our childhood or throughout the rest of our lives”.^[11]

41. The will of Ronald Hong did not make any testamentary disposition in favour of the respondent nor his brother, Errol. It provided bequests of $40,000 to each of Mr Hong’s children Duane Hong and Angela Hong and a bequest of $20,000 to Ian Thinee (known as Yang Hong). Clause 5 of the will stated:

“There are approximately fifteen (15) other children for whom I have not made provision under this my Will.  I do not have close relationships with them, some of them have been adopted and some of them I haven’t seen for twenty (20) to twenty-five (25) years. None of them carry my name of Hong.  For this reason I have not made provision for them under this Will.” 

42. The applicant’s counsel drew this clause to the respondent’s attention. However, the respondent maintained that the clause did not apply to him and Errol and that his father always said he would “sort” them out. But the respondent retracted his affidavit evidence that his father provided each of his children with a gift before he died in repayment for not looking after them, stating that he was referring to Errol and himself and was not sure who else received money.

43. The respondent contended that he had received the amount in cash from his biological father secretly because the respondent’s stepfather would not let him have anything to do with his biological father and would not have let him accept money from him.^[12]  He explained the discrepancy between that evidence and what he told police during the search by saying, “I was just giving a rough idea of where it was from so I wasn’t doing a sworn statement or anything … I was just trying to tell him where roughly it was from, what it was for”.  The respondent also said that he “didn’t … feel the need to tell the police officer my personal thing with my stepdad and my dad, I just roughly was telling him – I wasn’t even thinking about it.”

44. The respondent conceded in cross-examination that contrary to what he told police, he was not named as executor of the will, saying, “I was … just saying like anything to him, I didn’t feel like talking to him, so I wouldn’t tell him anything about my – and I was quite shitty at the time, Maria was coming into the room and fighting with me as the police were there and I was just – I wasn’t really listening, sir, I wasn’t paying much attention to what I was saying to – to him at the time”.

45. The respondent also gave varying estimates in cross-examination as to when he obtained the money. Initially, he estimated that this occurred about a month or so before the police search (in February 2008), though he later estimated that he received the money in December 2007, and even before then in November 2007.

46. As mentioned, the respondent also made varying statements as to the quantity received from his father. In cross-examination he maintained that he received approximately $50,000 (to be shared with Errol) by way of inheritance from his father, as compensation for never having paid maintenance or looked after him. Later, he said the amount was $48,000, to be shared with Errol. He said that when he told police there was “probably 30 of mine and 30 of dad’s” in the master bedroom, he meant that it was from his father, and that he got the amount incorrect because it was “off the top of my head”. He said he was looking after his brother’s half because he was in jail.

47. The respondent conceded that he made no mention to police during the search that the money given to him by his father was to be shared with his brother Errol and that he was holding his brother’s half because he was in jail at the time. The respondent said that he did not mention that because he did not feel like “getting into my whole family thing with the police officer that was standing next to me”.^[13]

48. The applicant pointed to the terms of Ronald Hong’s will and submitted that having regard also to the fact that Mr Hong was, for a number of years prior to his death, in receipt of Centrelink benefits, it was difficult to identify any source of funds from which any testamentary disposition, or indeed any other disposition, could have originated as claimed by the respondent. It was submitted that the respondent has not discharged the onus of showing that a sum of money in the amount claimed has been received from his father.

49. Given the many inconsistencies in the evidence on the matter, I am unable on the evidence before me to be satisfied on the balance of probabilities that the respondent obtained money from his father as claimed.

Savings

50. The respondent estimated that he had saved approximately $40,000 over a five year period prior to the police search. The respondent claimed this money came from a number of sources which will be addressed in turn.

Employment

51. The respondent was receiving Centrelink benefits between 1 January 2002 to 3 November 2008 (during which period he received a total of $66,386.47).  Prior to receiving Centrelink benefits he had been employed at a meatworks by Teys Australia (Beenleigh) Pty Ltd from 7 July 1994 to 2 July 2001 receiving a net income of some $173,271.  The respondent also received one payment from WorkCover Queensland totalling $1,088.44 in November 2000.  Since 1 July 2000 no taxable income was declared to the Australian Taxation Office by the respondent.  The respondent’s evidence was that during the time he was employed at the meatworks he bought a house but, upon developing carpal tunnel syndrome, he had not worked since July 2001.  His source of income since 2001 had been Centrelink payments of approximately $400-$500 per fortnight.

52. At about the time he left the meatworks, the respondent broke up with his wife (with whom he had two children) and went to live with a friend. He began a relationship with Ms Babic in 2005 and they had a child together in April 2006, thereafter moving in together. Ms Babic had no employment but received a single parent benefit of approximately $500 per week (about double what the respondent received). The respondent had the occasional trial job, such as cleaning for which he was paid about $40 per day (approximately $180 per fortnight) for a total of about five weeks. He did some work at The Beat nightclub in order to pay back money that he owed, probably four or five nights total over separate periods. The respondent did not claim to have saved in cash any of the earnings over the years (either from the meatworks or from Centrelink). Such earnings therefore do not form part of the seized cash.

53. The respondent’s evidence in cross-examination was that he had approximately $10,000 in savings when he began receiving Centrelink payments that he did not declare to Centrelink. That money did not comprise savings from his employment but “from the sale of cars and things”. The respondent stated that the money was used for gambling and therefore the amount varied at any given time. It is not apparent what amount the respondent contended remained of that money as at 5 February 2008.

Superannuation:  $8,000

54. The respondent received a payout from the Australian Meat Industry Superannuation Trust for what he initially estimated was about $10,000 but later confirmed was in fact $7,850. He later withdrew this amount from his account in two lump sums of $4,000 each (on 23 May 2002 and 12 June 2002) and kept this money with the intention of buying a motorbike with it (though that never occurred). The respondent maintained that at some stage, about a year after he withdrew the money from his account, he loaned the money interest-free to his brother, and it was paid back seven or eight months later. The respondent did not mention this source of money to police. In cross-examination he said, “I didn’t think it’d be a – a point that someone said we’d play - just having a bit of a hard time at the time – I wasn’t – didn’t have all the – you know, records of everything I’ve ever had before to be showing up there, I was just – I’d just come home from being away for a couple of days…”. He “didn’t want to say anything” to the police. I am unable to conclude on the evidence that that money formed part of the money seized on 5 February 2008, many years after it was withdrawn from his account in 2002.

Cash previously seized by police in 2006

55. It was not disputed that on 4 October 2006, police seized a quantity of cash from a Bellbowrie house where the respondent was then residing. Initially the respondent’s affidavit evidence was that $20,000 was seized. This was corrected in a latter affidavit to claim that $24,000 was seized. The respondent’s explanation provided to police at the time as to the source of the money was that it was the proceeds of two motor vehicles. Detective Sergeant Manago in his affidavit (which exhibited contemporaneous notes of his interview with the respondent) deposed to about $14,000 being seized, which was found in a bag. His evidence was that the respondent stated that the money was the proceeds from the sale of a Ford Laser which he sold to his nephew, Graham Hayes, in November 2005 for $7,800 and the sale of a VL Commodore which the notes record the respondent said was sold to Darren Guy for $5,600 (making a total of $13,400). Police returned the cash after making inquiries of the purchasers.

56. The respondent did not require Manago for cross‑examination.  While he disputed that only $14,000 was seized, in his affidavit evidence he accepted that the money seized in 2006 was the proceeds of the sale of two motor vehicles, a VL which according to his affidavit evidence was sold for $4,000 and a Ford Laser which was sold for $13,000 (totalling $17,000).  In cross-examination the respondent agreed with the figures recorded by Manago as being the sale price for the vehicles and that these proceeds accounted for only $13,400.  However, he claimed for the first time that his mother had sent him about $5,500 for his brother’s legal expenses, which was also with the cash seized.  The respondent explained the failure to tell Manago about the money sent by his mother on the basis that he was not then aware the money was also in the bag.  Yet when it was pointed out that the money from his mother was also not mentioned in his last affidavit (document 24), the respondent’s explanation was, “I didn’t bother to mention it.  I get money from my mother all the time for my brother’s legal costs sent down to me.”

57. In cross-examination, the respondent appeared therefore to maintain, contrary to his affidavit evidence, that the sum seized comprised $13,400 from the sale of the two cars and money from his mother. When questioned whether he had retained the $13,400 since October 2006, the respondent conceded he had used portions of it gambling on the pokies. He had put money in and taken it out and “wasn’t quite sure exactly the amount”. A couple of times he had “lost nearly half of it” but he had also won money as well. He estimated that overall he came out a bit “less than even”.

58. The applicant submitted that the inconsistencies in the respondent’s evidence cast into doubt the assertions made by the respondent for the amount of money involved, and the proposition that it be accepted that the respondent kept the returned cash, untouched, from October 2006 to when it was seized in February 2008. Having regard to the respondent’s financial circumstances, such a proposition, it was submitted, was unlikely to be true. Accordingly, it could not be said that the evidence satisfied the onus of showing that the money was not illegally acquired property.

59. There is a great deal of weight in these submissions. Given the inconsistencies in the evidence, I am unable to conclude that more than $14,000 was seized on 4 October 2006. Furthermore, on the evidence before me, I am unable to be satisfied on the balance of probabilities that any of the money returned in 2006 comprised any portion of the money seized on 5 February 2008.

The proceeds of sale of motor vehicles

60. The respondent maintained that part of the moneys seized was able to be accounted for as proceeds from the sale of motor cars. As already mentioned, his oral evidence was that he used money from his previous employment and from his Centrelink benefits to buy and sell motorbikes and cars.

61. The respondent’s affidavit evidence was that he purchased two Mercedes Benz vehicles for $2,000 each, which were both sold to the respondent’s friend, a Mr P Barclay.^[14]  One was purchased on 11 January 2006 and sold almost immediately after for $8,500, with repairs being effected by the respondent’s panel beater friend, Darren Guy.  The other was bought on about 22 October 2007 and sold three weeks later to Mr Barclay for $10,500 after repairs were carried out by Mr Guy.  Out of the profit of $8,500, the respondent estimated Mr Guy received approximately $4,000.  Notwithstanding the sale, the respondent remained the registered owner of the car until March 2008 when he cancelled the registration.  The respondent contended that Mr Barclay abandoned the car in his wrecking yard along with several other cars when his business was put into receivership. The respondent thereafter took the car, along with a ute and some of Mr Barclay’s tools, back from the wrecking yard to a friend of Mr Barclay for Mr Barclay to collect (although Mr Barclay never did so).  Subsequently, when the respondent’s father needed a car, he collected it from the friend’s property and his father drove the car to Rockhampton, re‑registering it in the name of Steven Hayes.

62. The applicant submitted that the respondent’s evidence should not be accepted.  No affidavit from Mr Barclay was provided by the respondent and searches did not corroborate the purchase and subsequent sale by the respondent of these vehicles.  Nor was the respondent licensed under the relevant legislation to sell such property. 

63. I have a deal of difficulty in accepting the respondent’s contentions that as to the alleged proceeds from the sale of the vehicles in the absence of corroboration from any other witness called by the respondent. Even if it were accepted that the respondent obtained proceeds from the sale of the vehicles as contended, the respondent would also be required to prove to the requisite degree that he retained the money representing those proceeds and that it formed part of the money seized on 5 February 2008. On the state of the evidence presented, including as to the respondent’s finances, I am unable to be satisfied that any alleged proceeds from the sale of the two vehicles formed any part of the money seized by police.

Sale of necklace $10,000

64. The respondent’s affidavit evidence was that he received “a very expensive gold necklace and bracelet” from a friend, Billy Henley, who died in custody in 2007. His evidence was that the news of Henley’s death, to whom he had been close, was a shock.  He decided to sell the jewellery as he no longer wanted to wear it because it was “a constant reminder” of his loss and he also needed money to support his daughter.  The necklace was 18 carat gold and weighed about 600 grams.  He had it valued at about $45,000.  He agreed to sell the necklace in 2007 “after meeting a person who was willing to pay $10,000 in cash”.  The money was paid in two instalments of $5,000.

65. In cross-examination, the respondent stated that the necklace was a gold chain which was only worth about $12,000. The $45,000 estimate was a “rough estimate”. He never in fact obtained an independent valuation, but rather estimated the value with his then barrister based on the price of gold. The respondent said that he did not properly look at his affidavit when he failed to correct the valued price contained therein. The respondent also explained in cross-examination that he sold the chain for $10,000 because it was a motorcycle club necklace with insignia that could not be worn by those not in the club. He decided to sell it because it caused difficulties when he wore it. The different explanation given in his affidavit about mourning the loss of his friend and needing cash he said were his lawyer’s words in coming up with reasons for the sale. The respondent said he “wasn’t aware of everything [his lawyer had] written down”. A further version was given by his lawyer to the Police Prosecutions in a letter dated 14 March 2008. The respondent explained the inconsistencies in the versions over how he elected to sell the chain and how he knew who to sell it to by saying that he did not want to mention in correspondence with police that the individuals were “bikies”. He knew nothing about the lawyer’s letter to the police which was written on the basis of the “rough sort of story” of where things had come from, and his lawyer put it together and wrote the letter which the respondent now maintained was inaccurate.

66. There has been no inquest into the death in custody of anyone called Billy Henley in the 2000’s as would ordinarily occur and in cross-examination the respondent accepted that the man he referred to as Billy Henley was in fact Albert William Hendy (who did not die in early 2007, but in 2005).

67. On the basis of the respondent’s contradictory evidence (which inconsistencies he has failed to satisfactorily explain) I am unable to be satisfied that the proceeds of the sale of a gold necklace formed part of the money seized as claimed by the respondent.

Conclusion

68. Given the inconsistencies in the respondent’s evidence as detailed concerning the various claimed sources of the money seized and the lack of persuasive explanation for these inconsistencies, I am unable to be satisfied to the requisite standard of the source of the money seized. The respondent has not demonstrated on the balance of probabilities that the sources he identified provide a credible explanation for all or part of the money seized on 5 February 2008.

69. Accordingly, I am unable to be satisfied that the respondent has discharged the onus cast upon him to demonstrate that it is more probable than not that the money in question was not illegally acquired property. In those circumstances, no exclusion order should be made. The respondent’s application for exclusion is dismissed.

70. It follows that the applicant is entitled to the order it seeks that the sum of $104,080 be forfeited to the State of Queensland pursuant to s 58(1)(a) of the Criminal Proceeds Confiscation Act 2002.

71. I will hear submissions as to costs.

Order

72. The order of the court is that:

1. pursuant to sections 56(1) and 58(1)(a) of the Criminal Proceeds Confiscation Act 2002, the property of Steven Michael Hayes being $104,080 cash seized by the Queensland Police Service be forfeited to the State of Queensland;

2. any accrued interest on the forfeited property, currently held by the Public Trustee of Queensland, be forfeited to the State of Queensland;

3. the respondent’s application for exclusion filed 30 June 2008 be dismissed.