In recent times I have acted for 3 unrelated individuals who have had money seized from them by WA Police, and not returned to them after some months, despite:
- either not being charged, or having their criminal charges dropped or dismissed; and
- not being served with a Freezing Notice under the Criminal Property Confiscation Act 2000.
Its apparent that few lawyers are experienced in how to handle such a situation.
The answer lies in the Criminal and Found Property Disposal Act 2006. But a good knowledge of the Criminal Investigations Act 2006 (CIA) and the Criminal Property Confiscation Act 2000 (CPCA) is also required.
The CIA contains the powers pursuant to which WA Police most frequently seize cash. That is because most cash is seized as Police are going about other duties. If Police are specifically looking for cash there is a greater probability that they will rely on powers under the CPCA.
It is important to understand that when cash is seized under the CIA it is seized as evidence (for instance as evidence of the potential crime of ‘possessing property reasonably suspected to be stolen or unlawfully obtained’ contrary to s 417 Criminal Code (WA). I have previously written about that offence of possessing property suspected to be stolen, here.
The usual process when Police seize cash is for them to run it through a scanner that photographs each side of each banknote. Using Optical Character Resolution, the scanner then creates a report that lists the serial numbers. Those serial numbers are then cross checked against a Police database that has a record of every time an undercover officer or police informer has used notes in a controlled drug operation. If there is a correlation between notes seized and notes that are known to have been used in controlled drug operations, there is less chance Police will return the money, and a greater chance they will take action under the CPCA.
But if months later the Police have not laid charges, and have not frozen the cash under the CPCA, the Criminal and Found Property Disposal Act may provide a mechanism for the client to get their money back. It is at this point that Police can, in my experience, be rather tardy about returning money. It seems to me some officers are reluctant to return cash that they have suspicions about, even when they know that they have nothing more than a vague inkling, and perhaps even after the Proceeds of Crime squad have declined to take the matter on.
The process to recover the money in this scenario is to make a formal demand of Police, and if that is not successful to commence proceedings under sections 11 and 13 of the the Criminal and Found Property Disposal Act. That application will name the Commissioner of Police as defendant and be commenced in the Court that has civil jurisdiction for the sum of money involved. The usual rules of civil procedure apply to the application.
As is often the case when dealing with any large organisation such as WA Police, I have found that developing a rapport with the relevant division (the Proceeds of Crime Squad) and the relevant team at the State Solicitor’s Office (who will represent the Commissioner of Police if things cannot be resolved) also assists.
Good afternoon Edward i was hoping you could provide myself the simplest way of having seized cash returned a quick back story if you like i was pulled over on January 31 2022 about 500 metres from home the police whom said they wanted to search my car because in their opinion i looked under the influence of recreational drugs i explained i had been working since 5am that morning and i had never used recreational drugs had never been charged with having recreational drugs i explained i had just dropped my niece off at the train station after finishing work at 7pm and then drove my son to nollamara to look at a ute for sale as he is a apprentice electrician and has been looking for a work vehicle and it had been a long day to say the least however they went ahead and began searching the car they found a pocket knife and a capsicum spray and i was subsequently charged with possessing prohibited weapons they took me to the police station to make it official i presume whilst there they took my personal property including my wallet which contained just under $2,000 i explained to them that earlier that evening my 18yr old son and myself looked at a work ute advertised for $2,200 ONO they then said they were seizing the money as they believed it was illegally or unlawfully obtained i was furious i was then bailed to appear in court with ma curfew to remain at home between 8pm and 6am i explained i started work at 5.30am to which they replied not their problem and i would be arrested if the curfew wasnt adhered to a few weeks later i went to court use at and spoke with a duty lawyer in the courthouse who explained that under t he l aegislation the weapons were not prohibited so those charges were discontinued however the police said they were still investigating the money as i gave no explanation as to how i came about that amount of money at that time of night this situation dragged on unbelievably with different reasons by the police as to what was going on with it again i spoke with a duty lawyer as to the situation and said the police body cameras of the incident would show i explained how it came into my possession and also mentioned my son Aiden kept his savings in our floor safe we use at home after a few break ins we had and lucky they didnt pull me over a few days earlier as we went to morley with $8,000 to look at a nicer ute which he wasnt keen on the charges were finally dropped in may i then went to warwick police station were i was taken that night to request the money be returned as instructed by the police prosecutor who dropped the charge i was told it was roughly a 5-6 week process and someone would contact me after hearing nothing by 8 weeks i went back to warwick where i was told to sign some paperwork and the money would be put into my nominated b ank account in 2 weeks at the most it has now been another 5 weeks and i cant get a straight answer from anyone at warwick police station and i a couple of months ago lost my employment due to a Covid outbrfeak and i cannot afford an attorney i am still no wiser or i believe closer to having that hard earned money by my son worked for at his apprentice wage of just over $600 per fortnight and i am feeling sick inside for him and also struggling personally as i feel to blame for the money being seized which was i picked up a over zealous police officer it has now been approximately 7 months since the money was seized and roughly 14-15weeks since the charge was dismissed or discontinued any advice would be greatly appreciated as i am struggling also to keep my 2 teenage sons from always believing the police are there for us at all times and to trust them always 100% sorry i carried on for so long much obliged Peter Kelly
Hi Peter, I am sorry for my late response, your comment had ended up in the spam filter. Have you been able to get your money back?