The High Court has dismissed an appeal against a decision of the Queensland Court of Appeal relating to proceeds of crime legislation. In 2002, police found nearly $600,000 cash in Henderson’s car, and confiscated it under the Criminal Proceeds Confiscation Act 2002 (Qld). The trial judge accepted Henderson’s claim that the money was the proceeds of the sale of family jewellery, and that despite Henderson’s criminal history of theft, his past criminal behaviour was ‘of the kind that was easy to detect’ and unlikely to lead to him amassing $600,000 in cash. Henderson was, however, unable to demonstrate that the jewellery was not illegally acquired by its former owners in the family, and the trial judge refused to make an exclusion order that would prevent the State from obtaining a forfeiture order. The QCA upheld the trial judge’s decision, rejecting arguments that the trial judge applied an incorrect standard of proof and that failing to refuse the forfeiture order was contrary to the public interest.

Before the High Court, Henderson’s central argument was that s 68(2)(b) of the CPCA, which requires an applicant to prove that it is more probable than not that the property was not illegally acquired, only requires proof that Henderson himself was not involved in any illegal activity. In separate judgments, a majority of the Court (French CJ, Kiefel J, Bell J, and Keane J) dismissed the appeal, holding that the appellant needed to prove that the jewellery was lawfully acquired by his father. Because the primary judge had rejected the evidence of Henderson and his siblings as to how their father came into possession of the jewellery as being, on the balance of probabilities, untrue, Henderson was unable to meet the burden of proving that it had not been illegally acquired (see, eg, French CJ at [15] and Keane J at [168]–[170]). Gageler J, in dissent, would have allowed the appeal: it was sufficient that Henderson had led evidence to support a plausible inference that the jewellery had been legally acquired, and while the primary judge doubted the truth of the account, he did not draw the adverse inference that it was indeed illegally acquired ([92]–[94]). Without any evidence suggesting that the conventional perception that people do not ordinarily engage in criminal conduct did not apply to Henderson’s father, and without evidence of how Henderson, Henderson’s father, and any other previous owners acquired the jewellery, the more probably inference was that it was not a result of criminal activity (at [98]).