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.