Possessing unlawfully obtained property

The maximum penalty for possessing property suspected to be stolen or unlawfully obtained (including cash) under the Criminal Code (WA) has recently been increased. The offence is now an either way indictable charge.

Possessing unlawfully obtained property includes possessing the proceeds of crime.

I have successfully acted for a number of clients charged with possessing property suspected to be stolen or unlawfully obtained. In 2019 a client of mine had a charge under this section dismissed. He had been charged in relation to the possession of a Porsche Cayenne GTS, which police had also seized. The vehicle has been returned to my client.

Previously the offence provision was s 428 of the Criminal Code (WA). Section 428 was repealed with effect from 13 August 2014 ((Western Australian Government Gazette, 12 August 2014, No 12, page 2889)) when the new offence, to be found in s 417 of the Criminal Code (WA) came into effect.

Section 417 provides:

(1) A person who is in possession of any thing capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained is guilty of a crime and is liable, if no other punishment is provided under section 417A, to imprisonment for 7 years.

Summary conviction penalty: imprisonment for 2 years and a fine of $24,000.

(2) It is a defence to a charge under subsection (1) to prove that at the time the accused was allegedly in possession of the thing, the accused had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.

As the explanatory memorandum to the amending Bill explained, the new provision “mirrors” the old apart from penalty. ((The explanatory memorandum to the Criminal Code Amendment (Unlawful Possession) Bill 2013.)) The old case law on s 428 will remain applicable to s 417. Indeed so too is the case law on the predecessor to s 428, s 69 of the Police Act 1892.

As with the old s 428, there is still no definition or expansion of the meaning of the terms “reasonably suspected” nor “unlawfully obtained”. The relevant old case law includes:

• Hoskins and Another v Ramsden (No 2) (((2009) 196 A Crim R 77; [2009] WASCA 90)) as to the meaning of “reasonably suspected”; and
• Ryan v Dimitrovski (((1996) 16 WAR 457; 89 A Crim R 155 at 178-9 per Steytler J, Malcolm CJ concurring at 157.)) confirming that the words “unlawfully obtained” are not to be read down as requiring the property to have previously been “stolen”.

The stated rationale for the amendments is to enable unlawful possession charges to be heard together with other indictable offences, most commonly offences under the Misuse of Drugs Act 1981. ((The explanatory memorandum to the Criminal Code Amendment (Unlawful Possession) Bill 2013.))

It is to be expected that most standalone charges under s 417 will be dealt with summarily. Section 5(3) of the Criminal Code (WA) will govern any application to have a standalone charge dealt with on indictment. The most likely reason will be seriousness. ((See s 5(3)(a).))

Although the wording of s 417 of the Criminal Code (WA) is very different, the offence covers conduct that will also be caught by the money laundering offences found in Division 400 of the Criminal Code (Cth). The penalties under the Federal Code are however in some cases higher, and in many cases must be dealt with on indictment.

The most common way in which the prosecution will seek to prove either an unlawful possession charge under s 417 or a Federal money laundering charge under Division 400, is to show that the thing (most often cash) is “suspected” of being derived from the commission of some other offence (often described as the predicate offence). It is important to note that in order to make out the offences the prosecution is not required to prove the predicate offence beyond reasonable doubt.

Defence in s 417(2)

The defence commences with the words “It is a defence … to prove that”. The same words were held, in the context of another offence, by Hall J in Mulhall v Barker [2010] WASC 359 at [16] to place the burden of proof on the defence.

In Brown (1994) 72 A Crim R 527 the Court was concerned with a similar defence found in a similar, and long since repealed, Federal statute. Olsson J remarked:

It is important to note the use, in subs (2), of the expression “he or she had no reasonable grounds for suspecting” rather than a phrase such as “there were no reasonable grounds for suspecting”; and also that the section does not employ a phrase such as “he or she did not suspect”. The actual phraseology employed therefore gives rise to important issues of concept in endeavouring to place a proper construction on the exculpating provision.

at 537

And:

The court must therefore successively pose to itself the questions: What was the state of mind of the accused? Did the accused genuinely deal with the property without, in fact, suspecting that the property was derived or realised, directly or indirectly, from some form of unlawful activity? If yes, was that state of mind reasonably arrived at, in the sense, were there no reasonable grounds for entertaining the suspicion referred to in the statute?

at 539