ACT Director of Public Prosecutions v Truong
[2016] ACTMC 4
•7 April 2016
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Director of Public Prosecutions v Truong |
Citation: | [2016] ACTMC 4 |
Hearing Date(s): | 15 January 2016, 2 February 2016 |
DecisionDate: | 7 April 2016 |
Before: | Magistrate Campbell |
Decision: | The application is refused. See [113] – [115] |
Category: | Decision |
Catchwords: | CIVIL LAW – standard of proof CIVIL LAW – confiscation of criminal assets – restraining order – application for exclusion order by person other than the offender – interest in the property – party to the relevant serious offence – effective control – whether the applicant’s interest is tainted property |
Legislation Cited | Confiscation of Criminal Assets Act 2003 (ACT) ss 3, 9, 10, 14, 22, 26, 31, 77 Legislation Act 2001 (ACT) dict |
Cases Cited: | ACT Director of Public Prosecutions v King [2016] ACTSC 35 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 United States v One 1941 Pontiac Sedan 83 F Supp 999 (DC NY, 1948) |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Van Hieu TRUONG (Defendant) Honey NGUYEN (First Interested Party) Toyota Finance Australia Ltd (Second Interested Party) |
Representation: | Counsel Mr Williamson (Plaintiff) Ms Warwick (First Interested Party) Solicitors ACT Director of Public Prosecutions (Plaintiff) Mr C Prasad (First Interested Party) |
File Number(s): | AS 8 of 2015 |
MAGISTRATE CAMPBELL:
Background
On 22 May 2015 I dealt with an originating application brought under s 26 of the Confiscation of CriminalAssets Act2003 (ACT) (the Act). The plaintiff, the Director of Public Prosecutions, sought a restraining order under s 31 of the Act in relation to a white Lexus motor vehicle (the car) which bears distinctive ACT registration plates ‘HONEY’.
The defendant in those proceedings was Van Hieu Truong (‘the offender’ for the purposes of the Act). Honey Nguyen, who is the mother of two of his children, was named as Interested Party One.[1] It is she who is the registered owner of the car.[2] Property sought to be restrained and then forfeited under the Act need not necessarily be property of the offender.[3]
The application was brought without notice to Mr Truong or Ms Nguyen. The Act permits this.[4] As the explanatory memorandum explains, the reason behind this provision is to ensure that the objectives of a restraining order are not frustrated by giving offenders warning of impending action to restrain or confiscate their property, thereby giving them time to destroy relevant information or property before the application is heard. The disposition of property in those circumstances might frustrate the purposes of the Act.
The evidence before me on the application for a restraining order was contained in an affidavit of Detective Senior Constable Michael Woodburn made on 15 April 2015.
I was satisfied that there were reasonable grounds for the officer’s beliefs and suspicions stated in his affidavit. These included his suspicion that the car was tainted property and that it was subject to Mr Truong’s effective control during the commission of two drug trafficking offences (which both come within the definition of a serious offence in the Act) on 4 August 2014. Mr Truong was convicted of both offences and sentenced to a term of imprisonment by the Supreme Court.
As Mossop AsJ points out in Director of Public Prosecutions v Tomas [2015] ACTSC 233 at [15]:
The legislature has, in order to further the purposes set out in s 3 of the Act, permitted a relatively low threshold for the making of restraining orders ... it has made the making of restraining orders mandatory rather than discretionary.
I granted the application and made the following orders:
1.That pursuant to s 31(2) of the Confiscation of Criminal Assets Act 2003 the following property be restrained (the restrained property):
2013 white Lexus IS250 sedan bearing ACT registration HONEY with VIN JTHBF5D2505006913 and engine number 4GR0919971, estimated value of $66,850.
2.The Public Trustee take control of the restrained property.
The current proceedings
On 25 August 2015 Ms Nguyen lodged an application in proceeding seeking an order under to s 77 of the Act that the car be excluded from the restraining order made on 22 May 2015. If successful the car would be freed from the effect of the restraining order. In reality that means the order would have no effect as the car is the only property to which it refers.
Nature of the proceedings and onus of proof
For ease of reference I shall refer to the parties as Ms Nguyen, the DPP and Mr Truong.
The proceedings are civil not criminal proceedings. They are brought under s 77 of the Act which provides as follows:
77 Making of exclusion orders—serious offences
(4) If the application is made by a person other than an offender, the court must not make an exclusion order for the property unless it is satisfied that—
(a) the applicant has an interest in the property; and
Note For the meaning of interest, see the Legislation Act, dict, pt 1
(b) the applicant was not a party to the relevant serious offence or any related offence; and
(c) the interest is not subject to the effective control of an offender; and
Note For the meaning of effective control, see s 14.
(d) the interest is not tainted property in relation to the relevant serious offence or any related offence; and
(e) if the interest was acquired completely or partly, or directly or indirectly, from the offender—the interest was acquired honestly and for sufficient consideration and the applicant took reasonable care to establish that the interest may be lawfully acquired by the applicant;
(f) the property does not have evidentiary value in any criminal proceeding
In the present matter I am thus prohibited from making an exclusion order (the court must not make ...) upon the application of a person other than the offender (Ms Nguyen) unless I am satisfied, relevantly, that:
(a) Ms Nguyen has an interest in the car; and
(b) Ms Nguyen was not a party to the two drug trafficking offences committed on 4 August 2014; and
(c) Ms Nguyen’s interest in the car is not subject to the effective control of Mr Truong; and
(d) Ms Nguyen’s interest in the car is not tainted property.
Neither party suggested that paragraphs (e) or (f) of s 77(4) were of relevance for the application before me. I agree.
The onus of proof is on the party applying for the order. Ms Nguyen is in effect required to prove a number of negative propositions. Discharge of the onus requires me to be persuaded on the balance of probabilities of the matters referred to in s 77(4).
In Henderson v Queensland [2014] HCA 52, Gageler J examined various explanations of the ordinary civil burden of proof and in particular he referred to ‘the often repeated explanation’[5] of Dixon, Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1. In that case their Honours said at 5:
5. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while [in] the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise.
Justice Gageler continued:[6]
89. Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel:[7]
One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.
90. That description of the ordinary operation of the civil standard of proof applies equally to a case in which the legal burden of a party is to prove the non-happening of an event or the non-existence of a particular state of affairs as to a case in which a party's legal burden is to prove the happening of an event or the existence of a particular state of affairs. As Davidson J earlier explained in the Supreme Court of New South Wales in Ex parte Ferguson; Re Alexander:[8]
In all legal proceedings the basic principle at common law is that in civil cases a plaintiff must prove the essential elements of his case even if that course involves establishing the assertion of a negative ... He must establish what is really the affirmative in substance, not what is merely affirmative in form ... But if the party bearing the onus furnishes some evidence which gives rise to a presumption or inference of fact in his favour or that presumption already exists, the onus shifts to the other party.
His Honour's reference to evidence adduced by the party bearing the legal burden of proof giving rise to a "presumption or inference of fact" was to nothing more than an inference of fact drawn, in accordance with ordinary processes of inferential reasoning, in the absence of further evidence.[9] His Honour's reference to an "onus" then shifting to the other party was to nothing more than the practical need (sometimes referred to as a "tactical burden") for an opposing party to adduce further evidence if that party wants to prevent such an inference of fact actually being drawn in the circumstances of the case.[10]
The evidence
Ms Nguyen relied on the following documents:
(a) Affidavit of Honey Nguyen made 25 August 2015 (the first affidavit); and
(b) Affidavit of Honey Nguyen made 2 November 2015 (the second affidavit).
The DPP relied on:
(a) Affidavit of Detective Senior Constable Woodburn prepared for the original proceedings made 15 April 2015; and
(b) Affidavit of Detective Senior Constable Woodburn made 13 November 2015.
Ms Nguyen also gave evidence at the two day hearing as did Detective Senior Constable Woodburn and Detective Sergeant Richard Gough on behalf of the DPP. A statement of Constable Paul Reynolds dated 24 January 2015, which was clearly prepared for the earlier prosecution of Mr Truong and not specifically for the civil proceedings before me, was tendered by the DPP as exhibit 7.
Constable Reynolds, I was informed, was recovering from surgery and was unavailable to attend court to expand on the bare bones of information contained in his statement. Ms Nguyen did not seek an adjournment so that she could cross examine the officer on another occasion.
The evidence of Honey Nguyen
Outline of Ms Nguyen’s version of events
Ms Nguyen met Mr Truong in 2000 when he was serving a term of imprisonment for drug offences. She knew from the beginning that he was a drug dealer: Transcript of Proceedings, ACT Director of Public Prosecutions v Van Hieu Truong, Honey Nguyen, Toyota Finance Australia Ltd (ACT Magistrates Court, AS15/8, Magistrate Campbell, 15 January 2016) (‘T1-’) 73. They entered into a romantic relationship and two children were born as a result. They finally separated in September 2007. They live apart. She rents a property in Gordon and lives there with the children. Mr Truong lives in Bonython. Ms Nguyen maintains that her finances are kept separately from those of Mr Truong and that she receives no money from him for her support or for the children’s support (T1-31). On occasions he buys things for their children (T1- 41). She is fully aware of his drug dependency problems (although I note the only evidence that he is a drug user comes from Ms Nguyen) and knows that he is a drug dealer.
In late October 2013 Ms Nguyen purchased a new Lexus motor vehicle from a car dealership. She obtained a loan from Toyota Finance Australia Ltd to assist with the purchase. The total repayments on the loan amount to $75,621 (including interest payments amounting to a little over $16,000). She has made all payments to date in relation to the car (which bears the registration plates ‘HONEY’) and says she has received no assistance from Mr Truong. She has continued to make those payments since Mr Truong has been in custody and during the period of the car’s restraint.
On 4 August 2014 she came home from work (she finished at 5:30pm) and Mr Truong was there with the children. They decided to travel to Richardson to visit Ms Nguyen’s sister-in-law while the children remained at home. Mr Truong’s sister and his brother-in-law had a ‘big family problem’ (T1-38). Ms Nguyen was feeling unwell and asked Mr Truong to drive the car. On their return trip home they decided to drive to the Woden Southern Cross Club for dinner. During the course of that trip Mr Truong received a phone call. Ms Nguyen understood that Mr Truong had agreed to divert to meet a friend. She did not know why. She had heard his part of the conversation but did not ask him about it.
Mr Truong drove the car to Ainsworth Street in Phillip and stopped the car. Shortly after, he was arrested by the police. Ms Nguyen stated in her second affidavit at paras 42-43:
I am aware that the police allege that Mr Truong stopped the car on 4 August 2014 to sell drugs. I am aware that the police allege that he was carrying drugs on his person and in the car. I am aware that he was subsequently charged with serious drug offences ... At the time that Mr Truong was driving my car, I did not know his reason for stopping was related to drugs. And, I did not know that he was in possession of drugs in my car.
The majority of Ms Nguyen’s evidence was in relation to her employment and income in the years preceding and following the purchase of the car. This was in an attempt to show that her finances (derived from wages and a combination of Centrelink payments including Family Allowance, Schoolkids Bonus and Newstart) were sufficient to enable her to meet all her living expenses and to afford to make significant monthly repayments in relation to the car without assistance from Mr Truong whose primary sources of income appeared to be from Centrelink and his drug dealings.[11]
I do not intend to recite all the evidence given by Ms Nguyen. Much of it was contradictory and confusing and some parts were implausible and reflected poorly on her credit. Her record keeping appeared to be selective and inadequate.
Ms Nguyen has a Vietnamese background. She came to Australia when she was very young and has been speaking English for over 30 years. Her command of the English language is ‘good’ (T1-72). I certainly found this to be the case when she gave evidence. Language difficulties provide no explanation for the inconsistencies and contradictions in her written and oral testimony.
I formed the view that I could accept little of what Ms Nguyen said unless there was objective or independent evidence to corroborate it. The following are some examples of why I place so little weight on the reliability of her testimony.
Employment with Bistro Nguyen’s
In her first affidavit made on 25 August 2015 Ms Nguyen referred to herself as a restaurant waitress. In paragraphs 6 and 7 she stated:
6. I am employed at Bistro Nguyen’s in Civic. I work 56 hours per week. The owner of the restaurant is Amy Truong.
7. Mr Truong is employed as a kitchen hand at the restaurant. Ms Amy Truong is his niece.
In her evidence in chief, given some four or so months later, she was taken to these paragraphs and was asked to clarify the hours she was working at the Bistro at the time she made her affidavit. She replied (T1-21):
First of all I was on a training basis. I only worked there about 15 hours and now I have increased the hours.
I thought I was working more hours.
In cross examination Ms Nguyen was taken to this clear contradiction in her statements (T1-71). She attempted to explain it away by referring to the statement in her first affidavit as ‘a mistake’. She stated ‘my words were wrong ... my calculation was wrong’. Ms Nguyen agreed that she was later made aware that the owner of the Bistro had given a statement to police and that she would give evidence that Ms Nguyen only worked 15 hours a week at the time she made her first affidavit. Further the owner would say that Ms Nguyen had never worked 56 hours in one week at the Bistro.
Ms Nguyen denied that she was changing her evidence to fit in with the evidence she understood was to be led in the DPP’s case. She conceded that the most she has ever worked at the Bistro prior to November 2015 was around 30 hours. She denied that she was falsely inflating or representing the amount she earned because she knew she would have to somehow explain away money she was really receiving from Mr Truong to supplement her own income.
Ms Nguyen’s original statements in her first affidavit (in which she had given her solemn promise as to the truth of what was asserted in it) were in clear and unambiguous terms. They related to her work hours as at that particular date. The likely inference I draw from her change in evidence is that Ms Nguyen deliberately told a lie in her first affidavit to falsely inflate her hours of work, and thereby her income, so as to suggest that she was earning greater sums of money than she actually was at the time of filing her application. This would make it appear that she earned sufficient funds to pay for the car without assistance from Mr Truong.
The search warrants and where Mr Truong was living
Immediately after Mr Truong’s arrest the police executed a search warrant at the property he was renting from ACT Housing in Bonython. They then executed a warrant in relation to the Gordon town house rented by Ms Nguyen. The property in Bonython showed ‘no obvious signs of habitation’ such as clothes, toothbrushes or food according to the police. It was not totally empty. There were some items in the bathroom such as shampoo and the kitchen also had items in it. On entry into the house the police found an ACT Housing calling card dated 9 July 2014. It appeared that it had been slid underneath the front door. This suggests that the premises had not been visited by its occupant since before that date. I agree that this is a reasonable inference to draw bearing in mind the general condition of the premises observed by the police.
According to Ms Nguyen, Mr Truong would only stay in her home occasionally and certainly not on a permanent basis (T1- 44: she doesn’t remember how many nights he was there but not every night). When he did stay he would always sleep in a particular bedroom in which their son kept his clothes and some of his personal items and effects. She conceded that she would go into the room to pick up her son’s things, clean up and vacuum and that she would go into it multiple times during the course of the week to put her son’s washing away (T1-75).
Ms Nguyen denied that there was anything else to her relationship with Mr Truong even though in her statement Ms Nguyen’s landlady stated:
I know that Honey has a husband but I do not know his name. I know this because whenever I have done an inspection Honey has always told me to call her in advance so she can arrange with her husband to take the dog (described by Ms Nguyen as a staffy-cross who doesn’t like strangers) for a walk and so she can be at home. I have never actually seen Honey’s husband except in a photo she has at the house. I have never seen the dog at the town house when I have done the inspection. I have done two or three inspections at the town house and the last inspection would have been around August or September 2014.
During the course of the search warrant in Mr Truong’s room Ms Nguyen saw police locate drugs, syringes, clip seal bags, digital scales, spoons with residue on them and other drug paraphernalia. They also found amounts of methyl amphetamine and heroin along with other items including 13 mobile phones and Mr Truong’s passport.
Ms Nguyen said she knew nothing about ‘his stuff’ and stated that she had made it clear to Mr Truong that she wanted nothing to do with his drug dealing and drug activities. When asked:
So your evidence is that he would come for a short period of time and he would put all his drugs and paraphernalia in this room, is only going to be there for a short period of time, and leave it, bearing in mind that this is a room that you and your son are coming in and out of all the time (sic). That’s what he’s done, that’s your evidence?’
She repeated: ‘I don’t know anything about his stuff’.
Telephone intercept records of activations of Mr Truong’s phone for the period 4 July 2014 to 4 August 2014 led the police to draw the inference that during that period Mr Truong was living at Ms Nguyen’s residence for at least the majority of the time. Further I understand that the police found no indicia of drug dealing in Mr Truong’s premises.
For a woman who claimed to be aware, but intolerant, of Mr Truong’s association with drugs and her admission that she would regularly enter the room, I form the view that her claim to know nothing about Mr Truong’s ‘stuff’ is incredible.
I am satisfied that it is likely that Mr Truong was using the bedroom in the town house in Gordon as the base for his dealing operations for some time prior to the execution of the warrants and that Ms Nguyen knew this.
The money found in Ms Nguyen’s drawer and her aversion to banks
In Ms Nguyen’s bedroom the police found $2000 in cash in her underwear drawer. She described this money as: ‘that was my tax return, my salary ... yes my savings’ and ‘that was some of my savings and the tax return money’. She said Mr Truong did not know about this money. Ms Nguyen stated that she did not like banks so kept her money in cash and paid her bills in cash (T1- 48).
When cross-examined she was asked whether ‘the reason you took it out was because you wanted the money in cash form? ... and that’s the only reason?’ Her answer was ‘Yes’. In her second affidavit and a little later in cross examination Ms Nguyen claimed that she took her money out of her bank accounts to hide it from Mr Truong as he might use it in gambling (T1- 49).
When pressed with the suggestion that the money would be much safer in a bank account Ms Nguyen replied that she ‘likes to have her money with her’. She then reiterated that she pulled the money out of the bank account to hide in her house because Mr Truong had a bad habit and it was to prevent him from getting his hands on it.
When it was put to her that these two explanations were contradictory and that she had on separate occasions given different explanations for keeping her money in cash she responded then by saying both reasons applied. She repeated that had she left money in a bank account held only in her name so that Mr Truong could not access the money while it remained in the bank. When the lack of logic behind this conduct was pointed out to her, that is if she kept cash in her house it was more likely that Mr Truong would get his hands on it, she then replied ‘but he doesn’t know where I hide it’.
Ms Nguyen elaborated and said she had ‘a secret hiding place’ in the garden where she put her money to ensure that Mr Truong ‘did not get his hands on it’. When asked why she had not put the $2000 from her drawer outside in the garden in the spot where she hides money from Mr Truong she said that she had not had a chance to do so. This was so even though she had withdrawn the money from the bank over a week before 4 August 2014.
Ms Nguyen’s evidence was implausible and contradictory. While I accept that some people do not like to leave their money in banks I do not accept Ms Nguyen’s evidence as to why she did not.
Ms Nguyen’s finances at the time of the purchase of the car
It was difficult to ascertain exactly what Ms Nguyen’s income was at the relevant times. This is partly because her various versions of where she was working, and when, were confusing and on occasions contradictory, but also because she provided inadequate records to support her claims. It was also obvious that several employers had paid her in cash and that she had felt no obligation to declare this income to either the Australian Tax Office or to Centrelink and she could produce no records to corroborate her claims as to her working hours or income.
The loan application between Toyota Finance and Ms Nguyen was dated 28 October 2013.
According to her second affidavit shortly before she purchased the car she had been working with Endeavour Carpets. She claimed to be working from 9am to 5:30pm every day. She would then go immediately to Wasabi where she would work until 10:30 or 11pm when the restaurant closed. There are no records as to her employment with Wasabi. She says she worked there for around 12 months and that she was paid in cash.[12]
She ceased working at Endeavour Carpets in September 2013.[13] From about October 2013 she received Newstart Allowance and on 3 December 2013 she received her first pay from Project Lighting.[14] From this evidence I understood that I was being asked to infer that Ms Nguyen was not employed during the period in between.
However in her oral evidence Ms Nguyen stated that she continued to work at Wasabi after leaving Endeavour Carpets and only stopped around the time she started working with Project Lighting (T1-28).
This version of her employment was modified in re-examination when her counsel put to her the proposition that there was a period between 30 September 2013 and 3 December 2013 ‘which was about four weeks’ (I note that this could actually be as much as six to eight weeks) when she was not working either at Endeavour Carpets or Project Lighting. That is she was between jobs. Ms Nguyen agreed. It appeared that the last payment from Endeavour Carpets was for $1560 and was paid on 30 September 2013. Her first pay was received from Project Lighting on 3 December 2013.
Ms Nguyen at one stage stated that when she stopped working at Endeavour Carpets she continued working at Wasabi ‘for a little time’.
I infer this change in her evidence as to when she stopped working at Wasabi was in all likelihood brought about as by then Ms Nguyen was aware that the current manager and owner of Wasabi, Vajnesh Dhimar, had provided a statement to the effect that:
Honey had not worked at all in the restaurant since at least November 2013 when he took over full time as the manger and owner of the business.
Of course the inconsistencies with Ms Nguyen’s evidence about her employment with Wasabi were amplified when she was questioned about the information she provided when applying for finance to buy the car. It is set out in more detail below but, in effect, when pressed about this she then claimed that in fact she had been working for Wasabi for around two months at the time of her application on 28 October 2013 and that she had been working for over eight hours a day and was receiving around $1200 a week (T1-94-96).
I am not satisfied that Ms Nguyen worked as often at Wasabi as she claimed and certainly am not satisfied that she was working there ‘from November 2013’.
In her second affidavit Ms Nguyen stated that when she bought the car around October 2013 she paid a $7000 deposit using cash she had saved and from the sale of ‘her house and cars’. In court she said that all that money was gone by the time she bought the car: ‘if I had the money I would pay the car off I wouldn’t ask for a loan’.
According to the fine detail of one of the documents provided as an annexure to the first affidavit of Senior Constable Woodburn she paid a $1000 security deposit for the car. This accords with an answer given by Ms Nguyen in re-examination to her counsel. No explanation was given or reference made in her evidence to the mention in her second affidavit of $7000 coming from her savings (which of course she said in court had been fully expended by then).
Ms Nguyen said, in her first affidavit, that she went to work with Bistro Nguyen’s around March 2015 and that she was working around 56 hours a week. This is untrue as already discussed (supra paras [26]-[30]). The only records produced in relation to her income with this employer are two pay slips which show she was paid $579 net each week for the fortnight starting 2 November 2015 and that she worked 36 hours in each of those weeks.
Doing the best he could from the limited records provided by Ms Nguyen in relation to the July 2014 to June 2015 tax year, Mr Williamson on behalf of the DPP put to Ms Nguyen that clearly her expenses exceeded her income (rent and car repayments alone totalled $4180). She agreed with this proposition however when pressed to explain how she could afford to pay for everything, other than if for example Mr Truong had been assisting her, she said ‘I have savings, I still have some money’ (T1- 69). She then referred to the money she had saved from the sale of her house and the Audi motor vehicle (T1-72).
This claim directly contradicted her earlier evidence that she had exhausted all her funds from these sales before buying the car. At this stage of her evidence I noted that Ms Nguyen sat mute in the witness box for a while and appeared to be particularly uncomfortable. I infer this was because she realised she was having to explain away two inconsistent accounts of her finances given within a short time of each other.
It is not clear where the ‘savings’ she claimed to have could have come from and it is difficult not to agree with the proposition put by Mr Williamson to her that she was falsely inflating the amount of money she earned because she knew she would have to explain away money which in all likelihood had come from Mr Truong (T1-73).
The loan application
Some paperwork for the loan application for the car was attached to the second affidavit. From that affidavit it appears that Ms Nguyen was recorded as claiming in her application to be the manager of a large business Wasabi Teppinyaki. She is recorded as having been working there for 18 months with a net monthly salary of $4682. There is of course no reference to this income being received in any relevant tax documents.
Ms Nguyen is also described as being married and having no children. Her monthly rental is recorded as $866. All this is at odds with Ms Nguyen’s claims that she worked at Wasabi as a second job as a waitress and of course the fact that she had two children and was adamant that she was not in a personal or financial relationship with Mr Truong. Further her landlady in her statement says: ‘The rent is $830 per fortnight and has not increased while Honey has lived there’ (emphasis added). It is likely that Ms Nguyen significantly minimised her rental expenses and her lack of dependants and grossly inflated her income to make her capacity to repay the loan appear more certain.
It is difficult not to draw the inference that Ms Nguyen was less than honest about her financial and personal circumstances with the finance company when obtaining the loan although it is clear that somehow she did indeed have access to funds to enable her to meet the monthly repayments even after Mr Truong was sentenced to imprisonment in August 2015.
Notwithstanding the diligent efforts of her counsel, Ms Warwick, to attempt to clarify Ms Nguyen’s finances by preparing a number of written documents and by pointing to loans that Ms Nguyen had occasionally taken out, I was left uncertain as to what if anything of her evidence about her sources of income I could safely accept.
I acknowledge that on occasions Ms Nguyen took out loans. For example her evidence was that she took out a loan for $2500 with GE in October 2015 to meet her living expenses and because it was offered to her. It appears that GE did indeed pay that amount into her account. However under cross examination Ms Nguyen said that she did not need the loan to be able to meet all her expenses. Her evidence was contradictory and ultimately she was left in the unfortunate position of saying that she borrowed the money in order to save other money. A more likely explanation is that perhaps she needed to supplement her income at a time when Mr Truong was not available to provide his usual level of support.
The events of 4 August 2014
Ms Nguyen’s version of events was that she came home from work after finishing at Project Lighting at 5:30pm. About 15 minutes later she and Mr Truong went to his sister’s place. He drove as she was unwell with headaches and period pain. They were at the sister’s place for a bit over an hour. (This means, assuming a minimal driving time for her to get home from work and then to travel to Richardson, that it would be close to 7pm by the time they left Richardson. By then, according to the road side record of interview, Mr Truong had been under arrest for over 20 minutes). Mr Truong wanted to go to dinner at the Southern Cross Club in Woden and they were travelling there when he received a phone call. She heard him talking on the phone but she did not ask him what it was about or who he was going to see but she heard him agree to meet someone. She did not know why he had agreed to meet them. The person lived in Woden so they drove straight there and he met the person in Ainsworth Street in Phillip. That was when the police arrested Mr Truong.
Ms Nguyen denied that after they left her place in Gordon she and Mr Truong drove straight to the Erindale shops and parked the car behind the 7-Eleven service station. She denied that Mr Truong got out of the car and had a brief conversation with the passenger in another car and then got back in her car and kept driving. She maintained that they went to Richardson and that when Mr Truong received the phone call on their way to dinner it did not cross her mind that he was going to meet someone who might have something to do with drugs.
In the record of interview undertaken between the police and Mr Truong which commenced at 6:57pm on 4 August 2014 (approximately 20 minutes after his arrest) Mr Truong said at answer 97:
I just bought one point of ice from – from the guy at the shop there. I did put it inside the car. It’s in the the (sic) – the white car with ‘HONEY’ on the numberplates.
While I would hesitate before accepting anything that Mr Truong had said as being reliable, and regard it as more likely that Mr Truong was selling drugs not purchasing them, I note that he acknowledged that there had been some recent interaction between him and ‘the guy at the shop’. This corroborates the police observations of the car’s movements at the 7-Eleven in Erindale and contradicts the evidence of Ms Nguyen.
Ms Nguyen was shown photographs of the inside of the driver’s side door of her car which shows a clip seal bag in plain sight (the actual contents found in the door panel are listed at T2-21 at line 11). She maintained that she had not seen the items from the side of the car where she was sitting. It was dark and she could not see even when the doors of the car were opened.
That may be true but clearly Mr Truong had no reservations about leaving those items in the car with the possibility that Ms Nguyen might see them notwithstanding her claims that he was well aware of how disapproving she was off his habits and practices.
The police when searching the car also found some Tally Ho cigarette papers and what looks like a wooden handled knife in the passenger’s door of the car. That in my experience is not an unusual item to find in the possession of someone engaged in drug dealing (as a possible weapon or means of self defence). When asked about it Ms Nguyen said it was there from a previous occasion when she was peeling an orange in the car. I found this explanation to be glib and unconvincing.
Evidence of police officers
Detective Senior Constable Michael Woodburn discussed the telecommunications intercept software which enabled the police, under authority of a warrant, to intercept Mr Truong’s phone calls and messages and based on these to form the view that Mr Truong was involved in the distribution and selling of illicit substances between 13 July 2014 and 4 August 2014. They also formed the view that the majority of the overnight activations of Mr Truong’s phone suggested that he was staying at Ms Nguyen’s residence rather than his own.
On 4 August 2014 the police determined that they were going to bring the operation of surveillance of Mr Truong to ‘resolution’:
There had been dealing every single day so we were quite confident that further dealing was going to occur that day.
Senior Constable Paul Reynolds had been deployed to try and locate Mr Truong’s car. He was sent to Gordon as ‘that’s where the phone was showing its location on our telephone intercept and that’s where we suspected he was living.’ Detective Sergeant Gough said:
we knew of two cars of interest that he had, so he was deployed to try and locate those cars. One of them was a white Lexus with ACT registration ‘HONEY’.
Detective Sergeant Gough indicated that Detective Senior Constable Graham Reynolds located the car at about 4:30pm at Maddock Place which is near to Ms Nguyen’s home. He relayed that he saw a male driver and a female in the passenger seat of the car. Apparently he then lost sight of the vehicle for about an hour (which, while the timing is contrary to Ms Nguyen’s evidence, would allow for a short trip to Richardson to deal with a family crisis).
Around 5:13pm a text message conversation between Mr Truong and Ms Rowena Odgers was intercepted. At 6:12pm a communication between a person called ‘Ash’ and Mr Truong was recorded. Then at 6:15pm a phone call was intercepted between Mr Truong’s phone and that of an unknown male who arranged for them to meet behind the 7-Eleven service station in Wanniassa at the Erindale Shopping Centre. Detective Senior Constable Reynolds went to the area and found the white Lexus with the registration plates ‘HONEY’ stopped behind the service station. He saw Mr Truong and Ms Nguyen in the car and Mr Truong speaking to a male.
He lost sight of the car for a few minutes but then after this a radio communication was received from him which said that the car was travelling along the Yamba Drive in a northerly direction. Detective Senior Constable Reynolds then followed the car to Ainsworth Street in Phillip which is where the police understood a transaction was to occur between Mr Truong and Ms Odgers. Their records suggest Ms Odgers had contacted Mr Truong at 5:13pm (via text message not a phone call) and that this was the only communication between them that day. On Ms Nguyen’s version Ms Odgers rang Mr Truong when she was with him and when they were on their way to the Southern Cross Club from Richardson. Mr Truong met with Ms Odgers and their transaction took place while Ms Nguyen stayed in the car. The police then arrested Mr Truong and subsequently undertook searches of the properties in Gordon and Bonython. I am satisfied that the events of that late afternoon did not occur in the way Ms Nguyen claimed that they did.
My conclusions
Ms Nguyen was less than candid with the Court just as she has been less than honest with Centrelink, the Australian Tax Office and Toyota Finance. I would not accept any of her evidence as reliable unless corroborated by other cogent evidence. This does not mean that everything she has said was untrue but it is very difficult to discern what is true and what is not.
Of course the fact that a witness is disbelieved does not prove the opposite of what she has asserted. Rather it leaves a want of evidence on those matters. However in some circumstances a court may infer from the telling of a false story that the truth would harm the witness’ interests.[15] I draw that inference here from Ms Nguyen’s evidence.
Ms Nguyen’s evidence was clearly directed to distancing herself personally and financially from Mr Truong and his activities as a drug dealer.
Ms Nguyen minimised the degree of her relationship with Mr Truong. It is likely that that relationship is more significant than she claims, even though it may no longer be a sexual one. Mr Truong refers to Ms Nguyen as his girlfriend but more importantly when it suits her Ms Nguyen claims to have a husband (or at least on her version does not attempt to deny the relationship when someone such as her landlady assumes this to be the case). I am satisfied that it is likely that Mr Truong had been staying at Ms Nguyen’s home at least for most of the month prior to his arrest.
Further it is highly likely that Ms Nguyen was aware of Mr Truong’s activities and the presence of his drug paraphernalia which was kept in the bedroom at her home.
It is highly likely that she knew he was continuing to engage in drug-related activities and that she knew precisely what he was doing on 4 August 2014 when at the very least she was keeping him company while he drove her car to engage in his trafficking activities. Bearing in mind the police statements that there were two cars in which they were interested it is apparent that this was not a one off occasion of Mr Truong being seen by the police driving the car with registration plates ‘HONEY’.
I am satisfied that Mr Truong was driving the car immediately prior to his arrest which was immediately after he supplied drugs to Ms Odgers. I am also satisfied that shortly before going to Ainsworth Street in Phillip Mr Truong and Ms Nguyen travelled in her car to the 7-Eleven store in Wanniassa where Mr Truong engaged in a drug transaction.
I am also satisfied that Mr Truong was comfortable enough not to conceal any of the drugs he was trafficking in from Ms Nguyen (either in the car or at her home) which again supports the inference that there was no need to do so as she well knew what he was doing.
Ms Nguyen has had significant amounts of cash in her possession over the years and claims to be able to save, even now, some hundreds of dollars a week with no clear evidence of how this could possibly be from the sources of which I can reliably take note or even those that have been hinted at without real detail provided in relation to them. I reject her various explanations as to her ability to fund the purchase of the car entirely on her own.
She has a financial capacity to meet the monthly fees on her car along with rent and other regular domestic commitments. A clear inference is that she has additional sources of income, one likely explanation being that she has been a beneficiary over the years of the profits made by Mr Truong from his drug dealing. It is also possible that she still has some of those profits hidden in her ‘secret spot’ in the garden and continues to draw on them when necessary.
One can understand if part of a person’s income is provided from an improper source, or is not to be declared in an income tax return, that it is useful to muddy the picture in relation to those finances by there being as few formal records as possible of what one receives and spends. Ms Nguyen’s dealing in cash and her reluctance to leave her funds in the bank are likely to be because she is keen to conceal her finances and to minimise any electronic records held by financial institutions.
Findings in relation to s 77(4) of the Act
For her application to be successful, Ms Nguyen must satisfy the Court in relation to the following:
The applicant has an interest in the property
The Legislation Act 2001 (ACT) (‘the Legislation Act’) defines an interest:
interest, in relation to land or other property, means—
(a)a legal or equitable estate in the land or other property; or
(b)a right, power or privilege over, or in relation to, the land or other property.
The Act adopts this definition in s 77(4).
It appears that the ‘interests’ that are referred to in this section are primarily those held by third parties such as banks, finance companies and other credit providers. The reference to ‘interest in the property’ is, in part, a scheme devised to provide recognition and protection to those innocently holding an encumbrance in respect of tainted property.
Ms Nguyen did take out a loan to buy the car but there is no evidence of the loan being secured in any way over the car. I have assumed that Toyota Finance has no relevant interest to be considered.
I am satisfied that Ms Nguyen has an interest in the car. Indeed, she is the registered owner of it. Her counsel stated that she has full beneficial and legal interests in it, which includes all the usual bundle of rights held by the owner of a car. Her interest in it is therefore unfettered. She is the holder of the full rights in relation to the car.
I am satisfied that Ms Nguyen has an interest in the property.
The applicant was not a party to the relevant serious offence or any related offence
‘Party’ is defined in the dictionary of the Act:
party, to an offence, means a person who—
(a)commits or participates in the offence; or
(b)is an accessory before or after the fact to the offence.
While I am satisfied that it is highly likely that Ms Nguyen knew exactly what Mr Truong was doing I am not satisfied on the available evidence that she was an active participant in his drug trafficking on 4 August 2014. She was, however, close by when it occurred and well aware, in my view, of what activities the defendant was engaged in.
I am satisfied on the balance of probabilities that she was not a party to the relevant serious offences.
The interest is not subject to the effective control of an offender
Section 14 of the Act defines effective control:
14Meaning of effective control of property
(1)For this Act, property may be subject to the effective control of a person whether or not the person has an interest in it.
...
(2)In deciding whether or not property is subject to the effective control of a person, or whether or not there are reasonable grounds to suspect or believe that it is, regard may be had to any relevant matter, including, for example, any of the following:
(a)shareholdings in, debentures over, or directorships of, a company that has an interest (whether direct or indirect) in the property (a relevant company);
(b)a trust that has a relationship to the property (a relevant trust);
(c)family, personal, business and other relationships between people having an interest in the property, or in a relevant company or relevant trust, and other people.
(3)However, property is taken to be subject to the effective control of a person if—
(a)it is held by someone else on trust or otherwise for the ultimate benefit of the person; or
(b)within 6 years before or after the commission of the offence in relation to which an application is made in a confiscation proceeding, the person disposed of the property without sufficient consideration to someone else.
At the time of the offences Mr Truong was driving the car to enable him to engage in his drug related activities. He appears to have had effective physical control of the car on 4 August 2014. I accept that he drove the car on other occasions as well but even accepting that to be the case I am not satisfied that more generally he had effective control of Ms Nguyen’s interest in the car in the sense that the legislation uses this term.[16] I am not satisfied that Ms Nguyen as the registered owner of the car held it for the ultimate benefit of Mr Truong. Accordingly, on the available evidence I am not satisfied that the car was in general, rather than specifically on 4 August 2014, subject to Mr Truong’s effective control.
The interest is not tainted property in relation to the relevant serious offence or any related offence
100. Tainted property is defined in section 10 of the Act:
10What is tainted property
(1) In this Act:
tainted property, in relation to an offence, means—
(a)property that was used, or was intended by an offender to be used, in relation to the commission of the offence; or
(b)property that was derived by anyone from the commission of the offence; or
(c)property that was derived by anyone from property mentioned in paragraph (a) or (b);
and includes an amount of money held in an account with a financial institution that represents the value of property mentioned in paragraph (a), (b) or (c) that has been directly or indirectly credited to the account.
Note 1For the meaning of in relation to, see dict.
Note 2For the meaning of derived, see s 12.
Note 3Property includes an interest in property, see the Legislation Act, dict, pt 1.
(2)For subsection (1) (a), any property found in the possession of an offender at the time of, or immediately after, the commission of the offence is taken to be property that was used, or was intended by the offender to be used, in relation to the commission of the offence, unless the contrary is established by the offender.
Examples of tainted property for s 10
1A car used as a getaway car for an armed robbery (see s (1) (a)).
2Money and jewellery stolen during the commission of the armed robbery offence (see s (1) (b)).
3Shares bought using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1) (Meaning of derived)).
4A house in relation to which a mortgage is partly or completely discharged using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1)).
5Money or other property received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 (see s (1) (c) and s 12 (1)).
6Other property purchased using the money mentioned in example 5 (see s (1) (c) and s 12 (1)).
7Money stolen during the commission of the armed robbery offence is deposited in 1 or more accounts with a credit union and later transferred to a bank account that also contains money unconnected with the offence. The money in the bank account to the value of the money stolen during the commission of the offence is tainted property (see s (1)).
8Money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is deposited in a credit union account that also contains money unconnected with the armed robbery offence. The money in the account to the value of the money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is tainted property (see s (1) and s 12 (1)).
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
101. The term ‘in relation to’ is defined in both the Act and the Legislation Act. The Act provides:
in relation to—to remove any doubt, in relation to includes—
(a) in; and
(b) for or for the purposes of; and
(c) in connection with; and
(d) in respect of; and
(e) with respect to.
Example
The phrase ‘property used, or intended to be used by an offender, in relation to the commission of an offence’ (in s 3 (d) and elsewhere) refers to 1 or more of the following:
(a) property used in or in relation to the commission of the offence;
(b)property used for or for the purposes of the commission of the offence;
(c) property used in connection with the commission of the offence;
(d) property used in respect of the commission of the offence;
(e) property used with respect to the commission of the offence.
102. The Legislation Act provides:
in relation to includes the following:
(a) in respect of;
(b) with respect to;
(c) in connection with;
(d) in regard to;
(e) with reference to;
(f) relating to;
(g) for or with respect to.
103. ‘Property’ is also defined in both the Act and the Legislation Act. The Act states:
property —
(a)of an offender, for division 7.3 (Value of benefits)—see section 90; and
(b)of a person, includes property in which the person has a beneficial interest.
104. The Legislation Act expands:
property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes a thing in action.
Note A thing in action is an intangible personal property right recognised and protected by the law. Examples include debts, money held in a bank, shares, rights under a trust, copyright and right to sue for breach of contract.
105. The mere fact that the property in question is at the location where the offence was committed will not ordinarily be sufficient to result in it being tainted property. There must be some activity connected with the crime that involves the utilisation of the property. That is, the property is used with the aim of committing or furthering the commission of the crime.[17]
106. In R v Hadad (1989) 16 NSWLR 476, McInerney J said at 482:
The meeting between Hadad and the proposed purchaser of the drugs was pre-arranged; it was to take place in a public street; it was essential for a person involved in such a transaction that he minimise the risk of being caught with the drug or the proceeds in his possession; and that the use of a motor car was not incidental to such transaction.
107. His Honour then went on to quote Leibell J in United States v One 1941 Pontiac Sedan 83 F Supp 999 (DC NY, 1948) at 1002:
The automobile enables the dope seller to make himself more elusive in travelling to places where he meets his customers or his confederates … He can travel greater distances, follow less frequented streets or roads, move about at will and alone, and be completely independent of public means of conveyance. The automobile helps him escape observation, detection and capture. It is an operating tool of the dope peddler’s trade.
108. The property (the car) in the current matters was clearly used ‘in relation to’ the offences. It is clear from the definition of that phrase, and from authorities from other jurisdictions,[18] it has a wide operation.
109. The car was an ‘operating tool’ in the commission of the offence.[19] The meeting between Mr Truong and Ms Odgers was prearranged. It was to take place in a public place. It was essential for Mr Truong that he minimise the risk of being caught with the drugs in his possession. The use of a motor vehicle was an integral part of the transaction. It enabled Mr Truong to transport the drugs from Ms Nguyen’s residence and to travel to meet his customers, to move about at will and to, hopefully, escape observation, detection and possible capture. The car is tainted property.
Is Ms Nguyen’s ‘interest in the car’ tainted property?
110. By referring to someone other than the offender’s (that is, Ms Nguyen’s) ‘interest in the property’ the legislature has purported to create a scheme of matters that a third party must establish to the satisfaction of the court in order to have that interest excluded from the operation of the restraining order. This is the statutory protection for truly innocent third parties who are at arm’s length from the offender.
111. Ms Nguyen does not fall into that category. She is not an innocent third party. Her interest is quite different from that of an innocent owner of property deprived of their rights of possession and control by an offender (a thief) who then uses the car to engage in drug trafficking activities. In this latter case the rights of possession and control of the owner have been usurped by, rather than transferred to or exercised in favour of, the thief. The owner’s interests are plainly not tainted.
112. I am satisfied on the balance of probabilities that the car has been obtained, at least in part, from funds provided to Ms Nguyen by Mr Truong from the proceeds of Mr Truong’s drug dealing activities (but not of course those relating to the actual offences). She permitted her car to be used in connection with the commission of the relevant offences (to transport the drugs), she knew why her car was being taken to the various locations on 4 August 2014 and she travelled to those locations with Mr Truong. She waited in her car while he conducted his illegal activities.
113. In this case there is no relevant legal or practical distinction which exists between the vehicle itself and her interest in the vehicle. Her interest in the car was tainted property.
114. I am not satisfied that Ms Nguyen’s interest in the car is not tainted property in relation to the two relevant serious offences.
115. Ms Nguyen has failed to discharge the onus placed on her by the legislation. I need not go on to consider the matters in paragraphs (e) or (f) of s 77(4). The application is refused.
| I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Campbell. Associate: Verity Griffin Date: 10 May 2016 |
[1] In light of the comments of Refshauge J in the recent decision of ACT Director of Public Prosecutions v King [2016] ACTSC 35 it may have been more appropriate for Ms Nguyen to have been described as a defendant.
[2] A restraining order may be made to preserve property so that it will be available for forfeiture or to satisfy a penalty order: Confiscation of CriminalAssets Act2003 (ACT) s 22.
[3] Ibid, ss 9 (‘General Overview’) and 26.
[4] Ibid, s 243(2).
[5] Henderson v Queensland [2014] HCA 52 at [88].
[6] Ibid [89]–[90].
[7] (1959) 101 CLR 298 at 305. See also Carr v Baker (1936) 36 SR (NSW) 301 at 306; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 at 269; 23 ALR 345 at 350. See generally Hodgson, "The Scales of Justice: Probability and Proof in Legal Fact-finding", (1995) 69 Australian Law Journal 731 at 732-733.
[8] (1944) 45 SR (NSW) 64 at 70.
[9] J D Heydon (ed), Cross on Evidence (LexisNexis, 9th ed, 2013) 297 [7240], 299 [7255].
[10] Ibid 293 [7215].
[11] Mention was also made of his working as a kitchen hand and in an aged care facility but I have no further information.
[12] There was no evidence to explain what arrangements she had made for the care of her children, who turned 10 and 8 respectively in the second half of 2013, while their mother worked such long hours. This may be because Ms Nguyen did not work those hours or because Mr Truong was able to mind their children. This remains conjecture on my part.
[13] Second affidavit of Ms Nguyen, para 29.
[14] Ibid.
[15] Henderson v Queensland [2014] HCA 52, Bell J [28].
[16] Explanatory Memorandum, Confiscation of Criminal Assets Bill 2002 (ACT), 6: ‘This concept is necessary to give full effect to the purposes of the Bill, by making it more difficult for offenders to control assets by placing them in the name of other persons. This clause will enable confiscation action to be taken in relation to property that an offender has attempted to protect or conceal by giving or transferring it to another person for less than full value within the preceding six years, or by using a trust or corporate structure.’
[17] DPP (New South Wales) v King (2000) 49 NSWLR 727 at 734 per O’Keefe J.
[18] For example: R v Rintel (1991) 3 WAR 527; R v Hadad (1989) 16 NSWLR 476; R v Bolger (1989) 16 NSWLR 115; United States v One 1941 Pontiac Sedan 83 F Supp 999 (DC NY, 1948).
[19] United States v One 1941 Pontiac Sedan 83 F Supp 999 (DC NY, 1948) at 1002.
0
3
2