(Possession of Money & Jurisdictional Issues of Possession Charges)
Want to talk to a lawyer about criminal law? This is the next best thing: an open conversation in which Perth lawyers Khew Wong and Aimee Price take a look at the real-world issues and questions people need answered surrounding theft, or suspected theft, and unlawful possession of money.
The full transcript is below!
Aimee: Welcome to WN Legal’s next podcast. My name is Aimee and I’ll be the host of this podcast. Next to me I have Khew, who is the business partner of the firm. Now Khew deals primarily with criminal law matters, but he does also delve into family law matters. Now, today we will be discussing a criminal law topic.
We’ll chat about that topic in a moment, but firstly we just need to put a short disclaimer in relation to this podcast. Now, the contents of this podcast is just a general discussion about the areas of law that we practise in, that the public may be interested in. This podcast should not be taken as a substitute for legal advice whatsoever as each case is completely different. Now, I’ll hand over to Khew now who’s going to be talking about the unlawful possession of …
Khew: Yes. Thank you, Aimee. Thanks. Now, today we’ll be talking a bit about unlawful possession charges, the actual name of the charge is possession of unlawfully obtained property. For purposes of today’s podcast we’ll be talking about money as the charge and people being alleged to possess money, money that is unlawfully obtained or suspected to be stolen. The reason why we’re talking about this is because in the recent times in our practise we have been dealing with single charges itself, one charge or possession of unlawfully obtained property, property being money. We are not even talking about property that are suspected to be stolen like stuff you see on eBay being sold and then you see say a radio, a high quality radio in your house, suspected to be stolen and police charging you for that. No, we’re talking about possession of money and police charging people with having to keep money at home, obviously a handsome amount.
From experience somewhere between 20 to all the way to half a million dollars. There are people out there who keep money at home, it’s not irregular. In the olden days you’d get a lot of older people keeping money at home. There was actually an article very recently of an old lady, she kept I think 20 grand in her old couch, and her grandson sold the couch, and sold the 20 grand worth of couch, well the contents within the couch in itself, which was the money. There are people out there that keep money at home, in their own cabinet and wherever it is. It’s not necessarily illegal, but the reason why we’re talking about this is because there’s actually a charge in existence for keeping money of any amount that is suspected to be either stolen or unlawfully obtained.
Aimee: When might these charges come around, Khew? What would sort of need to have happened first, or what would be, what are the police or the prosecution looking to prove, I suppose?
Khew: Well, there are varying circumstances where an unlawful possession charge can crop up. In a very traditional sense, it’s very common for unlawful possession of money to come in tandem with drug charges. It comes with no surprise because of the drug issue, the rapid drug issue in Western Australia, but they’re usually, the possession of money. An illegal amount, sorry, of stolen money or unlawfully obtained money usually comes in with drug charges. That’s because drug in itself is an illegal enterprise, so whether you’re selling drugs or you’re getting profit from drugs, the money coming out of it is an illegal enterprise.
If you have money that is found in tandem during a search warrant or a seizure of certain assets define money, that usually is a single charge in itself of possession of unlawfully obtained property. The money itself will be a criminal charge. Now, when drugs come into play, so for example, if you’re charged with a drug charge, and unlawful possession of money is also a second charge, it’s very regular, well it’s normal for a separate legislation called a Criminal Property Confiscation Act to be triggered. That is also if the offence is severe enough, and if the offence is an indictable offence or an [either-way 00:04:50] offence, then usually the CPCA, the Criminal Property Confiscation Act will kick in.
Aimee: Before you go any further, just elaborate, if you can, on what a summary and what either-way offences are, just for those listening so that they understand where you’re going with that.
Khew: Yes. There are three, two actually, two or three kinds of charges out there. There’s a summary charge, that means simple offence in a very colloquial way of putting it, a simple offence. Then there’s also the indictable charges, which are the more serious charges. Indictable charges won’t, can’t be dealt with in trial, in the magistrates court, they have to be dealt within the district court and above. An either-way charge is a charge that goes either in the magistrates court or the district court, but that will depend on what I would call the section five factors. Now, possession of unlawfully obtained property was in the past a simple offence, so that means all the charges for unlawful possession charges are to be dealt with or were to be dealt within the magistrate court. In the recent time there is an enactment or an amendment of the law where these, this specific charge is now an either-way charge.
The reason why they’ve done is because there’s a vast majority of drug cases where an accused is charged with possession of a marketable quantity of drug or a serious amount of drugs, a serious amount, and they are found with say half a million dollars of cash with them. The last time the charges had to be split, what had to be dealt within a district court or higher, and the other one had to be dealt with in a magistrates court. The other being the cash charge, the money charge, it had to be dealt with in the magistrates court, because the previous legislation didn’t allow the charges to be dealt with at the same time as the drug charges. In the recent years they have amended the law and they made it an either-way charge, obviously subject to what we call a section five, sorry, section five factors in the criminal code. Subject to all these other various regulations and statute being satisfied, that the charge to be dealt within the district court. The possession charges cannot be dealt with together.
Aimee: Is there, in relation to that as well, Khew, is there is a threshold I suppose for the monetary value, or is it just sort of looked at in conjunction with the other offences as to whether it goes into the indictable category or whether it falls into summary? Is there some sort of limit, or is the seriousness in nature maybe of the entire offending?
Khew: That is something I’ve argued very recently in court. That comes down to what I’ve just said earlier, a section five of the criminal code issue. The prosecution and the defence will be arguing as to what factors would result into the matter being dealt with in the district court or the magistrate court.
That includes obviously the amount, so if you have, what, 200,000, 300,000, $400,000 worth of cash at home, they can’t be dealt within the [inaudible 00:08:11] courts, the magistrate court, they have to be dealt within the district court, because the value is so high that now it goes up to the district court. Apart from that, obviously they also consider whether it’s a compounding charge with other drug charges, or is it a standalone by itself.
Khew: If it’s a standalone charge, then things are a bit different, but if you’re charged with say other drug charges, then unfortunately the matter goes together with the drug charge to the district court, if it’s a serious drug charge.
If it’s a serious drug charge, it does not preclude the issue of having your properties seized under the Criminal Property Confiscation Act. Now that’s a separate issue, and we’ll talk about it another time, but that’s a completely different issue that you have to deal with, it’s a civil issue between the accused and the state, as compared to this money charge.
Aimee: That won’t be heard all together with the other charges.
Khew: No, no. I’ve digressed. Yep.
Aimee: Yeah, okay. Now in respect to, back to the unlawful possession of money, now what are the prosecution looking to prove? What is their burden of proof and what are they looking to prove to be able to draw the inference that that money has been illegally obtained? What are they looking at? Yeah, okay. Now in respect to, back to the unlawful possession of money, now what are the prosecution looking to prove? What is their burden of proof and what are they looking to prove to be able to draw the inference that that money has been illegally obtained? What are they looking at?
Khew: For the purpose of this podcast, we’re talking about just unlawful possession of money in itself, this money charge, as a standalone. For example, the police go to your house and raided your house because of other issues, they found, say what, 70 grand worth of money in there, and they go, “All right, I’m going to charge you for this money because it appears that you can’t substantiate it.”
It’s all well and well to say that if you’re, for example, a businessman, a wealthy businessman, and you keep say a 100 grand at home. The police are more than likely to just leave it alone and not charge you, but it’s always a case by case basis.
Khew: To say that keeping money at home instead of putting it at a bank is wrong, I would say so. I mean we can’t really assert that, but the problem is if you have money at home of that much quantity, the first question is, what gave rise to the police coming to your house or search your car, to search your car? Did they smell cannabis when you wound down the window? Or did they, what, intercept your phone and find that there was a deal going on and they found money at your house? Usually money charges, although they standalone sometimes, sometimes, usually they come in with other issues. They start with something else, there has always been another trigger. Where there is another trigger, irrespective of the situation, the police needs to prove as a criminal offence, as it is a criminal offence, they have to prove beyond reasonable doubt. Now the burden rests upon the prosecution to prove every element of this specific charge beyond reasonable doubt.
They have the burden of satisfying the court on the [inaudible 00:11:25] that they have no grounds for suspecting that any item was stolen or unlawfully obtained. Well, they have to, the court has to, they have to satisfy the court that. The prosecution however has the burden of proving beyond reasonable doubt that the accused was in possession, number two, of the thing capable of being stolen, number three, that it’s reasonably suspected or the police reasonably suspected that the item can be stolen or unlawfully obtained. Now, what is unlawfully obtained? What is the reasonable suspicion behind it? The prosecution needs to satisfy the court and to allow the court to reach an objective conclusion from the evidence led as to whether or not the goods or the money might reasonably be suspected to be stolen or unlawfully obtained, that’s in the case of [Ryland 00:12:22] [inaudible 00:12:23]. In the case of Ryland [Dimetrosky 00:12:25], there is also the case of [McGlennon 00:12:29] and Campbell. They burden and the onus of proving all of these things.
Now, if the court can be satisfied on the evidence, on the face of the evidence brought forward by the prosecution, then there is one single reasonable suspicion open on the evidence that the money in question might have been stolen or unlawfully obtained, then obviously the charge has been proven. That is what they need to prove, that the element and the proof. Now the question is whether or not keeping money at home would automatically trigger these charges, the answer is, no, it does not automatically trigger it. It does not normally just come around like that. It obviously comes around because of other issues, such as-
Aimee: Other circumstances.
Khew: Yes, that’s correct.
Aimee: Yeah. Okay. Is there anything further, Khew, that you want to add on that topic, or do you think you’ve spoken effectively for everyone listening?
Khew: Yes, so that means, what I’m trying to get at is the charge, keeping money at home does not mean that you would automatically be charged for this, it doesn’t work that way. They always come about in a different manner. They are triggered, that’s, but I guess the take home message is, something like this does exist. They can exist for money, but the property need not be money, they can be other things as well. They can even be a car, possession of unlawfully obtained property being a car.
Well, that’s another issue obviously, but that is, for example, if you have a car that’s unregistered, and so a mate gave it to you, and the mate is in prison, for example, example. You have that car, and the car has been on the police’s VKI, being tagged as stolen, then you have an issue because they would charge you and say, “Look, it’s unlawfully obtained.” What I’m trying to get at is the same approach in which they deal with the car, they would also use the same approach for money. It obviously come down to the investigative power of the police.
Aimee: Yeah, and what they can provide to be able to draw the two together or to link it to the behaviour I suppose.
Khew: That’s correct.
Aimee: Beautiful. Okay, well, as we always say at the end of our podcast, if you do have any further questions or you are being charged with this offence, or something similar, we would like you to call our office and make touch with Khew and that way he can go through things a little bit further with you.
Khew: Yes. Yes.
Aimee: For the purposes of today, I think we’re done. Until next time, thank you.
Khew: Thank you.
There’s a lot to know, when moving through the Criminal Court of Australia – especially when it comes to theft and unlawful possession of money. We hope this discussion has answered some of your questions, but we cannot stress enough how important it is to seek legal advice before taking action in this complicated legal process.
If you need legal support or advice from property lawyers or criminal law in Perth, contact us at https://www.wnlegal.com.au/. Our Perth team of experienced lawyers, including property settlement lawyers, are on-hand to assist you through your legal and court processes.