Andelman v Director of Public Prosecutions

[2015] VCC 462

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION
MELBOURNE

Revised
Not Restricted
Suitable for Publication

CI-08-05305

IN THE MATTER OF THE Confiscation Act 1997

AND

IN THE MATTER OF AN APPLICATION under s20 of the Confiscation Act 1997

BETWEEN

JOSEF ANDELMAN and SOFIA ANDELMAN	Applicants
V
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

---

JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	18-20, 23-27 and 31 March 2015
DATE OF JUDGMENT:	28 April, 2015
CASE MAY BE CITED AS:	Andelman v DPP
MEDIUM NEUTRAL CITATION:	[2015] VCC 462

REASONS FOR JUDGMENT
---

Subject:  Confiscations; applications for exclusion

Catchwords:             Whether properties not unlawfully acquired; whether offender’s wife did not know properties derived property; failure to give evidence

Legislation Cited:     Confiscations Act 1997

Cases Cited:DPP (Cth) v Jeffrey (1992) 58 A Crim R 310; Markovski v DPP [2014] VSCA 35; Briginshaw v Briginshaw [1938] HCA 34

Judgment:                Applications for Exclusion dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicants were not represented by Counsel
For the Defendant	Mr S McGregor	Solicitor for Office Public Prosecutions

HER HONOUR:

1       Mr Josef Andelman and his wife, Mrs Sofia Andelman, have applied for exclusion of their interests in their house and other property which has been subject to a Restraining Order since December 2008.   In effect, they have applied for exclusion of those assets from what will otherwise be the operation of automatic forfeiture.  As Mr Andelman told the court, he has waited almost seven years to have the opportunity to obtain release of these assets, and the events behind these applications have dominated his and his family’s life for that entire period. 

Background to the applications

2       It is appropriate to set out how these applications come to be before the court.

3 On 12 November 2008, Mr Andelman was charged with multiple counts of theft arising out of his then employment. On 8 December 2008, a Restraining order was made by His Honour Judge McInerney pursuant to s18 of the Confiscation Act 1997 (“the Act”) in respect of a number of assets of Mr and Mrs Andelman. These were three real estate properties jointly owned by them, four vehicles registered to one or other of them[1], several bank accounts in one or joint names, and several amounts of cash found and their home, some in foreign currency.

[1]One of those vehicles, a Kia Sorrento, was no longer owned by Mr Andelman, and subsequently released from the Restraining Order

4       On 15 December 2008, applications were filed on behalf of both Mr and Mrs Andelman, each applying for exclusion of their respective interests in all of that property.  As often occurs, their applications were stayed pending the outcome of criminal charges against Mr Andelman.  The Andelmans have not had legal representation in these applications since then.

5       At a trial in 2011, Mr Andelman was convicted of 85 charges of theft, and sentenced to imprisonment[2], but successfully appealed[3].  On retrial in May 2014, he was convicted of 82 charges of theft, totalling $142,560, and was sentenced to imprisonment[4].  An order for compensation or restitution was made on 4 July 2014 in favour of the City of Melbourne, the victim of the thefts, and the amount of $142,560 was ordered to be paid.  That has been paid, from sums of money restrained under the Restraining Order.  None of the cash originally restrained is still subject to the Restraining Order. 

[2]Trial before Her Honour Judge Douglas; jury verdict 4 November 2011; sentenced 15 November 2011

[3]Court of Appeal decision 25 February 2013 – [2013] VSCA 25

[4]Trial before His Honour Judge Chettle; sentenced 4 July 2014.  Much of the minimum term had by then been served as pre-sentence detention.

6       In the meantime, there have been variations of the Restraining Order made, to permit sale of two of the properties, with the net proceeds still restrained[5]. Another Variation permitted sale one of the vehicles to enable an exchange to a car more suited for Mrs Andelman to drive[6], and one vehicle has been released from the Order as it was not still owned by Mr Andelman when the order was first made[7].

[5]Proceeds of the sale of 55 Thunderbolt Drive, Cranbourne were paid into a restrained mortgage loan account, and net proceeds of the sale of 6 Tulip Grove Cranbourne are held in a trust account by the ACC.

[6]        Order of His Honour Judge Murphy made 29 April, 2014

[7]The Kia Sorrento was released by Order of His Honour Judge Saccardo made 11 March 2015

7       Mr Andelman still disputes that he was guilty of any thefts of coins from parking meters - those of which he was convicted or any others.  In response to questioning during cross-examination, he said that he intends to try to appeal his convictions from Judge Chettle’s trial, but not until has funds to pay for private lawyers and will not trust Legal Aid funded lawyers again[8].  As he was informed during the hearing when he said this, the time for an appeal has long since expired, and the court is proceeding with these applications on the basis that on the public record he stands convicted of 82 charges of theft totalling $142,560.   

[8]T 189, lines 14-21

8 As Mr Andelman was convicted of offences of theft totalling more than $75,000, his offending comes within Schedule 2 of the Act. As a result, the balance of the property restrained by the original Restraining Order is subject to automatic forfeiture[9] unless these applications for exclusion are successful. 

[9]Pursuant to s 35 of the Confiscations Act 1997 as it stood at the time of the offending.

The hearing

9       Mr Andelman represented himself, informing the court that he could not afford to pay for a lawyer because his assets were restrained, and he had had an application for legal aid for this proceeding refused. 

10After some initial doubt, Mrs Andelman said she would let her husband also speak for her in her own application.  This was after they both initially said he did not speak for her[10]. I had suggested that she consider getting separate legal representation, and told her that if she applied for legal aid and was refused, she could apply to the Court under s 143 of the Act for an order that legal aid pay for her representation. After considering the issue overnight with her husband, she declined to make application for legal aid to obtain representation, and said that she would let her husband also represent her[11]. 

[10]T 28 line26- T29, line2; t 31 line 29 – T32, line 9

[11]T 48, lines 10 - 22

11Mrs Andelman was present and sat at the bar table throughout the hearing, assisting her husband, and appeared to be following the evidence and issues by reference to the Court Books.  She did not give evidence.

12Both Mr and Mrs Andelman speak Russian as their first language.  Mr Andelman speaks English well, but because legal proceedings involve complicated or technical language and legal concepts, his Honour Judge Saccardo had directed that the DPP arrange and pay for an interpreter in the Russian language.  Mrs Andelman understands, speaks and reads some English, but less well than her husband. She was also assisted throughout the hearing by the same interpreter in Russian.

The law to be applied

13At the time when all relevant events in this case occurred, the following were the relevant provisions of the Act.

14Under s35, if a person were convicted of a Schedule 2 offence and a restraining order had been made for purposes including automatic forfeiture, and the restrained property was not the subject of an exclusion order under s22, the restrained property would be forfeited to the Minister on the expiry of 60 days after the defendant’s conviction.

15Section 22 (1) provided as follows.

“ On an application made under s20, where the restraining order has been made in relation to a Schedule 2 offence for the purposes of automatic forfeiture –

(a)the court may make an order excluding the applicant’s interest in the property from the operation of the restraining order if the court is satisfied that –

(i)    the property in which the applicant claims an interest was lawfully acquired by the applicant; and

(ii)   the property is not tainted property; and

(iii)  the property is not derived property; and …

(iv)  [no longer relevant];

(b)where the application is made by a person other than the defendant, the court may make an order excluding the applicant’s interest in the property from the operation of the restraining order –

(i)    if the court is not satisfied that the property in which the person claims an interest is not tainted property or derived property but is satisfied that –

Athe applicant was not, in any way, involved in the commission of the Schedule 2 offence; and

B[not relevant in this case]

Cwhere the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and

Dthe applicant’s interest in the property was not subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property.”

16The following definitions applied.[12]

[12]Section 3 of the Act

“property means real or personal property of every description, whether situated within or outside Victoria and whether tangible or intangible, and includes any interest in any such real or personal property;

tainted property, in relation to an offence, means property that –

(a)  was used, or was intended by the defendant to be used in, or in connection with, the commission of the offence; or

(b)  was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of the offence; or

[balance of definition not relevant]

derived property means property –

(a)    used in, or in connection with, any unlawful activity by –

(i)    the defendant; or

(ii) the person who is suspected of having committed a Schedule 2 offence; or

(iii) the applicant for an exclusion order; or

(b) derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity by –

(i)    the defendant; or

(ii) the person who is suspected of having committed a Schedule 2 offence; or

(iii) the applicant for an exclusion order; or

(c)  derived or realised, or substantially derived or realised, directly or indirectly, from property of a kind referred to in paragraph (a) or (b);

[balance of definition not relevant]”

17Under these provisions, Mr Andelman’s applications must be considered under the requirements of part (a) of s22(1).  Mrs Andelman’s application must be considered under part (b). 

18The onus of proof is on each applicant, and the standard of proof is the civil burden on the balance of probabilities[13].

[13]DPP (Cth) v Jeffery (1992) 58 A Crim R 310 at 312

19These provisions place an onus on each applicant to prove negative propositions.  That onus may be discharged by the applicant giving evidence denying that the property was unlawfully acquired, tainted or derived from stolen property if that evidence is accepted as honest and reliable[14].  The situation has been likened to that of a taxpayer for whom it has been said that it is wiser for the applicant to produce corroborative evidence to support his sworn denial[15]. They need only deal with inferences available from the evidence which tends to contradict that negative. 

[14]DPP v Jeffery at p312

[15]DPP v Jeffery at 313

20While the legal onus of proof remains on the applicant, there is an obligation on the Director of Public Prosecutions to point to or introduce evidence from which inferences may become available that the property was unlawfully acquired, derived or tainted.  There is therefore an evidentiary onus or obligation on the Director of Public Prosecutions, but the burden of proof of establishing the negative of those propositions remains on the applicants and it is the ordinary civil burden on the balance of probabilities.[16]

[16]DPP (Cth) v Jeffery (1992) 58 A Crim R at 312 – 314

21The issue of whether the property was lawfully acquired, requires consideration not only of facts by which the applicant can prove payment for the property, but if raised on the evidence, whether the applicant can show that the source of the funds used to acquire the property was not lawful.[17]

[17]Markovski v DPP [2014] VSCA 35

The evidence

22Although evidence-in-chief in applications of this nature is normally by affidavit, and although Mr Andelman had filed 12 brief affidavits made by him, I allowed him to give much wider evidence-in-chief in support of his own and his wife’s applications for exclusion, because the affidavits had clearly not covered a lot of the material or issues required, and the Andelmans had not had legal representation to assist them in their preparation.

23Mrs Andelman did not give any evidence herself, having not filed any affidavit despite being given the further opportunity, even during the hearing, to do so.

24Mr Andelman was extensively cross-examined, and his credibility and reliability as a witness challenged.  Although there were some instances where I doubted Mr Andelman was being truthful[18], and some others whose reliability was doubtful when compared with other pieces of evidence, overall I have accepted large portions of Mr Andelman’s own evidence.   However that does not mean that he wins this case.  As Mr McGregor as counsel for the DPP submitted, the applicants bear the onus of proving that their assets were not obtained unlawfully, and not derived from tainted property (in this case stolen coins), and there were significant gaps in their evidence. There was little or inadequate evidence from Mr Andelman as to the source of a substantial portion of the funds used to acquire assets, in particular the source of his gambling bets, and no evidence from Mrs Andelman as to her knowledge of any of the source of funds by which the restrained assets were purchased. 

[18]For example, at T….. when he said he had not known his salary when starting work at NPS but….”

25The DPP relied on affidavits, mainly exhibiting statements and other documents, by Sergeant Travis Farnsworth, the original investigator of the offences; Mr Rodney Tatnell, a co-offender; Detective Anthony Gumley, the original applicant for the restraining order; Ms Rachaell Saunders, one of the owners of Mr Andelman’s former employer; Ms Michelle Fielding, of Crown Casino; and Ms Rose Tizzani, a forensic accountant employed by the DPP.  Each of those deponents attended for cross-examination.  There were some further documents tendered by each side, which are set out together with the affidavits and exhibits in the attached schedule. 

26Mr Andelman challenged the credibility and reliability of some of the witnesses relied upon by the DPP.  Some of his criticisms were well-founded, and I shall deal with them when dealing with specific evidence.  The problem with those criticisms, however, is that unless I find that they undermine the reliability of the whole of what that witness has said, there remain parts of their evidence which raise issues which the onus was on the Andelmans to displace or disprove.

Findings as to relevant Andelman family circumstances

27Mr and Mrs Andelman were both born in Russia.  Each of them had migrated to Israel many years before they met - Mr Andelman in his teens. He says that he worked from age 15, before doing his compulsory military service. When aged in his 20s, Mr Andelman moved to Australia, worked or operated businesses, and obtained Australian citizenship.  In 1991 he returned to Israel for military service, and he remained living there for the next 12 years, during which time he married Sofia, and their three sons were born. 

28In 2003 he returned to Australia, bringing his sons, but his wife was refused a visa.   It was 16 months before she was able to rejoin them[19].  While he challenged the immigration department’s decisions and fought to bring his wife to Australia, he was not able to work as he was solely responsible for his children[20].  They lived on Centrelink payments[21], and in government assisted housing.

[19]T 149, lines

[20]T 602, lines 9-13

[21]T 602, l 16-17

29After his wife to came to Australia, she needed time to recover from the stress of the separation from her children, and he then set about finding work, and obtained qualification as a security guard.  He obtained employment in that field in late 2005 or early 2006, working for two to three months for two successive employers, for one including during the Commonwealth Games in Melbourne in March 2006. 

30In May 2006, Mr Andelman commenced employment with a company called National Protective Services (“NPS”) which contracted with the Melbourne City Council to collect coins from its parking meters. 

31Although initially saying in evidence that he did not know how much his pay was to be when he started with NPS, which I queried during the hearing and frankly disbelieve, Mr Andelman accept that the wages documentation produced by his former employer is correct in showing that his wages varied according to the hours worked each fortnight, but totalled approximately $37,000 per year net after tax.  I infer that he would not have moved to this job if the pay were less than his previous two jobs in security, so from that infer that his wages for the five to six preceding months would have been no more than $710 net per week.

32The relevance of the Andelman family’s circumstances from 2003 to 2006 is two-fold.  First, it helps explain Mr Andelman’s distrust of decision making processes of Australian government bureaucracy, the intransigence of decision makers towards reviewing their decisions without being taken through a litigation process[22], and his distrust of the reliability of information gathered by a bureaucracy whether government or commercial enterprise. He regards the confiscations process as similarly mishandled against his family.  Secondly, his history between 2003 and 2006 indicates that the family had no significant source of income other than from the Department of Social Security, and no other apparent source of significant funds or savings.

[22]He had to go through a Migration Review Tribunal hearing to reverse the refusal of his wife’s visa

33The only other potential source of funds was from gambling.  Mr Andelman commenced membership of Crown Casino in 2003, but concedes that it took time to learn and gain experience before he had significant winnings.  Records produced from Crown Casino[23] (challenged by Mr Andelman overall, but not relevantly for the pre-2006 period) reflect only two visits without winnings in 2003, and modest winnings in 2004 and 2005[24].

[23]Exhibit 8 – attached to Fielding statement

[24]Approx. $2000 in 2004 and $4000 in 2005 – Player Yearly Transaction Report (CB p 372)

Circumstances giving rise to criminal charges

34Mr Andelman’s employment duties with NPS included the collection of coins from Melbourne City Council parking meters.  This task was always conducted with two NPS staff present, usually one as the driver and the other unlocking and emptying the meters.   There were various types of meter, only one of which, called the “Reino”, recorded the amounts of coins deposited into it. 

35In October 2008, police were asked to investigate a report from Melbourne City Council that it believed coins from its parking meters were being stolen through the collection process.  The investigation was supervised by Sergeant Travis Farnsworth who said that initially police were asked investigate the preceding 12 month period, that during investigations it became clear that thefts had commenced earlier than that, and that the police investigation was extended back to the period commencing 1 July 2007. 

36I am satisfied that as a result of the police investigations, Sergeant Farnsworth believed that the thefts had commenced prior to 1 July 2007.  I am satisfied that he regarded the commencement of a financial year was a convenient point at which to “draw a line in the sand”, and that police were not asked by the Melbourne City Council nor NPS to extend their investigation back before 1 July 2007.  I am satisfied not only from Mr Farnsworth’s evidence but from the admissions in the statement of one of the offenders, Mr Tatnall, that thefts by some employees of NPS of coins they collected from MCC meters as part of their employment, commenced in 2005.  That means that the thefts had been occurring for at a year before Mr Andelman commenced employment with NPS. 

37The charges of which Mr Andelman was convicted were for thefts of coins by him between July 2007 and October 2008, totalling $142,560.

38In addition to his salary from NPS, the Andelmans’ income over the period from July 2006 to the time of Mr Andelman’s arrest in November 2008, consisted of payments from Department of Social Security to him and his wife being family allowance and child allowances.  It also consisted of winnings from Crown Casino.  From late 2008, it also consisted of monthly rental payments of $3,300 from Porter Davis Homes under a lease of the property at 42 Waterbury Street, Cranbourne which they purchased in September 2008 and was leased back as a display home.  Apart from social security payments, Ms Andelman had no other separate source of income.

Assets currently restrained

39The assets currently restrained and therefore the subject of this application are:

(i)        net proceeds of sale of 6 Tulip Grove, Cranbourne (held in trust account by ACO – approximately $404,435);

(ii)       42 Waterbury Street, Cranbourne (the applicants’ current home, subject to mortgage with approximately $271,852.73 owing);

(iii)      2008 Chrysler 300C sedan, registration WOS 313;

(iv)      2008 Chrysler Sebring convertible, registration VJS 007;

(v)       2012 Toyota sedan registration IBS 8QW (bought by exchange for second 2008 Chrysler 300C registration WOS 314 after to variation of restraining order);

(vi)      National Australia Bank Flexi Account number 15586296968 (“a/c 6968”);

(vii)     National Australia Bank account number 368826487126 (home loan on 42 Waterbury Street, Cranbourne).

Findings of fact as to acquisition of the above property

6 Tulip Grove, Cranbourne

40This property was purchased by way of a purchase of the land together with a a building contract for the construction of a home on it.  The total purchase price was $274,000, comprising $114,000 land price and $160,000 building contract. Initial deposits were paid in August 2006 of $500 for the land and $1,000 for the building contract.  Both were paid in cash.  The balance of the deposit for the land was paid with the First Home Buyers Grant of $10,000[25].  The balance of the purchase price for 6 Tulip Grove was paid through a bank loan from the National Australia Bank, a total of $269,000 being borrowed.  That amount was not all drawn down immediately, as instalments were made on the building contract.  Therefore, initial repayments were less, being $372.22 per fortnight in December 2006. 

[25]Shown on (a/c 6968) bank statement for November as deposited on 27 November 2006.

41The building was completed and possession taken of the new home in April 2007.  At or shortly after that time, the home loan account 0982 was closed, the loan being fully repaid by refinancing through new mortgage loan account number 083368872372434 (“2434”).  That loan account had fortnightly repayments of $980. 

42That home loan was substantially reduced by deposits of three substantial cheques from Crown Casino.  The first of these dated 15 December 2007 was for $85,000, then a $45,000 cheque in Jan  2008, and $60,000 in March 2008.  There were also some cash deposits of $9000 to $9500 (said to be partly wages and partly winnings), and the loan was fully repaid in November 2008.

55 Thunderbolt Drive, Cranbourne

43This block of land was purchased in July 2008 at a cost of either $163,000 or $170,000.  A deposit was required of five per cent, which Mr Andelman said they paid in cash ($8,000 or $9,000) – and the balance of the purchase price was borrowed from the National Australia Bank.  The total loan from the National Australia Bank was $160,691.67 under National Australia Bank account ending 2276 called a “Tailored Home Loan Choice Package” opened on 11 July 2008.

44This account was initially opened with a deposit of $1,000 in coins.  A further cash deposit of $590 was made on 1 September 2008 and the loan fully drawn down, which I infer was for settlement of the purchase.  Thereafter, fortnightly repayments of $650 were transferred from account 6968. 

45At the time Thunderbolt Drive was purchased and the loan drawn down for $160,000, there was less than $60,000 still owing on 6 Tulip Grove.

46Deposits into the loan account to pay it down were made from Crown Casino cheques of (half of split $40,000) on 11 November 2008, split of $70,000 on 14 November 2008.  The loan on this property was fully repaid on 2 December 2008.

42 Waterbury Street, Cranbourne

47This was an already built house used as a display home by Porter Davis Homes.  It was purchased by Mr and Mrs Andelman in August or September 2008 for a cost of $525,000.  A deposit was paid of $52,000 and $500,000 borrowed – on an interest only home loan account 7126.  Monthly repayments were $4,118.21.  Part of the agreement for this purchase was that Porter Davis Homes would take a lease of the property for two years, paying $3,033 per month rent.  Mr Andelman says that the bank officer told him that he was covered for the two years of the Porter Davis lease and then he would need to sell his house (6 Tulip Grove) to cover mortgage payments.

48This is the house in which the Andelman family now lives. 

49There were significant payments to reduce this mortgage, by Crown casino cheques - $1000 on 24 November 2008 and $30,000 on 1 December 2008. There was $370,000 still owing on this loan as at December 2008.

50The proceeds of the sale of 55 Thunderbolt were allowed to be used to pay down this mortgage account, but there is still more than $100,000 owing on it.

The vehicles

51On 18 August 2008, Mr Andelman went to Brighton Chrysler Jeep dealership and purchased vehicle registered number WOS 313.  The cost of the vehicle was $52,000 of which $20,000 was credited for the trade-in of Mr Andelman’s previous vehicle, a Kia Carnival, and $32,000 paid in cash.  Mr Andleman says that the cash came from winnings at Crown Casino. 

52The same or following day, Mr Andelman paid a deposit and then purchased a second Chrysler vehicle, a Chrysler Voyager, registered number WOS 314.  That was purchased as the family car and registered in his name.  Its purchase price of $55,000 was paid totally in cash from winnings at Crown Casino.  He says that he accumulated that amount over different dates which he kept in cash at home.

53In September 2008, Mr Andelman again went to Brighton Chrysler Jeep dealership and purchased a convertible, paying $55,000 cash.  This was for the Chrysler Sebring registration VJS 007, registered in Mrs Andelman’s name.

54As Mrs Andelman found driving the Chrysler Voyager difficult, it was directly exchanged for a Toyota sedan registered number 1BS8QW, this exchange authorised by a variation in the restraining order made

Source of Funds for acquisition of property restrained

55Mr Andelman’s take-home (ie net after tax) pay from NPS averaged approximately $36,000 or $37,000 per year[26].  It varied fortnightly according to his hours worked, and I accept that he chose to work extra shifts or hours when offered. It ranged from $52,422 gross total in f/y 06/07 to $47043 in f/y 07/08.  His wages were paid directly into his bank account at his request.

[26]Ms Saunders Affidavit says $36,000 but the records appear to show it a little higher

56He and his wife each received some DSS payments for family allowance and child benefits.  Mrs Andelman received no other income than from DSS in the relevant years.  All DSS payments were made directly into bank accounts and not by cash.   

57The only other source of income was rent from Porter Davis Homes on a lease back arrangement of 42 Waterbury St Cranbourne, but that did not commence until November 2008 so does not account for the source of funds for purchase of most of the assets which occurred before, or were completed shortly after then, other than 42 Waterbury Street.

58The only other source of funds pointed to by Mr Andelman was his gambling winnings from Crown Casino.  In total more than $500,000 in payments down of loans came from the cheques from Crown Casino.

59The DPP produced evidence through an affidavit by Ms Michelle Fielding [27] which includes copies of records from Crown Casino, where Mr Andelman was a member from 2003 until 31 October 2008 when his membership was cancelled.  Mr Andelman disputes the accuracy and reliability of the casino records, claiming that he won more there than the records show.  I accept that during cross-examination of Ms Fielding he was able to challenge some of her assertions as to how the casino operated, and after she checked by telephone she conceded some of her original assertions were not correct. Further, in his final address Mr Andelman pointed to some entries which could not be accurate, and certainly not if the general description given by Ms Fielding were accepted.  For example there appeared to be recording of him at more than one table at a time, or gaming at a table for an extended period without placing a bet.  Unfortunately these had not been put to Ms Fielding in cross-examination so there was no opportunity for me to assess whether there was a reasonable explanation or whether there was significant error in the records.

[27]Exhibit 8

60I have taken the approach that the Crown casino records are likely to be largely reliable as an overall indication of Mr Andelman’s gaming patterns, but that the records are not necessarily totally accurate.  Where there is competing evidence I have considered which I felt more reliable on the particular issue.  As the only contrary evidence to Ms Fielding was Ms Andelman’s, I have considered the reliability of that on each issue where it arose.

61The records only show betting where Mr Andelman produced his membership card for the transactions to be recorded, but as he was highly motivated to raise his status from the general gaming floor to the VIP room and then the Mahogany room, I am satisfied that he used his card as much as possible.

62I make the following findings from the evidence of Ms Fielding and Mr Andelman in relation to the use of coins for betting at gaming tables:

i)         the Casino never paid winnings by coins;

ii)        coins were only accepted in small quantities to buy chips at gaming tables, and the practice was discouraged.  The upper limit was $10 from one customer, and the limit may have been $5 for some of the period;

iii)       coins would be accepted at a cashier’s cage to exchange for credit on a member’s account or a voucher or banknotes, any of which could then be used at a table to buy chips;

iv)       chips could be “bought” at gaming tables in exchange for banknotes or Casino vouchers;

v)         winnings could be paid by cheque if the customer requested that method, but it could take a little more time;

vi)       there was no restriction on leaving the Casino with betting chips or entering with them from a previous occasion.

63Mr Andelman challenges the reliability of the Crown Casino records and evidence from Ms Fielding. As I understood him, while he challenges the reliability generally, his main issue is that the records do not reflect him winning as much as he says he did. The only evidence to the contrary is his own, and in this he relies on his own credibility and reliability as a witness, which is not unblemished.

64The DPP argues that I should not accept his evidence.  It starts by submitting that his denial of the offences in the face of his conviction for them makes it almost impossible to accept his evidence as truthful on any other matters.  I do not agree that his continued denial of the offences of which he was convicted by a jury totally undermines his credit, although I do not accept those denials either.  He regards himself as having been unfairly prosecuted and indeed pursued through these confiscations proceedings, and treated more harshly than the men who admitted the offending where he did not.  I conclude that they received the important benefit in sentencing through having pleaded guilty and thereby given utilitarian benefit in saving the community and witnesses having to go through a trial, accepted responsibility for their actions and displayed remorse.  

65The DPP points to what Mr Andelman concedes was untrue in his affidavit in support of an application he made for the court to order that legal aid be provided to him.  In that affidavit, in February 2009, he said that the mortgage on 55 Thunderbolt Drive still had $370,000 owing on it, whereas he says here that that mortgage had been fully repaid in December 2008 some two months before the affidavit.  I place no weight on that as undermining his credibility.  I infer that that was a genuine mistake in naming the property still mortgaged.  It is apparent that he was in fact referring to the amount owing under the mortgage at that stage on 42 Waterbury Street which he did not say in the affidavit had an outstanding mortgage.

66I also do not place significant weight on his not revealing in a DSS form in November 2008 that he had acquired more property, even though he did not really explain why that might have occurred when cross-examined about it.

67What did cause me to doubt his frankness early in his evidence was when he said that when he first applied for employment with NPS he did not know what he would be paid and was prepared to let them see how he worked and later find out how much they would pay him[28].  I found that most unlikely given his approach to his financial affairs generally, and gained the impression that Mr Andelman was testing what might be believed by the court. 

[28]T 76, lines 15-23

68I also formed the view that Mr Andelman was deliberately avoiding the issue of the origin of the large quantities of coins he was depositing into various accounts, about which more will be said shortly.

69The issue of whether his winnings were substantially more than what is recorded by Crown Casino cannot be resolved by me on the basis purely of his asserting that overall he won about $400,000 in 2008.  I find that he did win substantial amounts and those are recorded as $183,165 in 2007 and $233,485 in 2008. What is critical in this case is not merely the total of his winnings, but the source of the funds used to place the bets that accrued such winnings, and Mr Andelman did not adequately explain those to me, even though some time was spent in his final submissions – as opposed to his evidence – trying to explain what I could make of the casino records of his transactions where he was also challenging their reliability.

Was Mr Andelman involved in offending prior to 1 July 2007?

70There was considerable attention given to this issue from the DPP’s point of view, and overall I consider unnecessarily so.   The relevance in the end was to raise as its evidentiary burden facts from which it could be inferred that there was theft of more coins by Mr Andelman than just the amounts in respect of which he was convicted.  Nevertheless, I shall summarise the evidence and argument, especially as my findings as to credibility or reliability of some witnesses may impact on other issues. 

71Ultimately, however, I shall not be making a positive finding even on the balance of probabilities that Mr Andelman did steal more coins than those the subject of his charges.  Not only would that invoke an approach to the civil burden of proof taking into account the seriousness of the nature of the allegation, being of criminal acts[29], but it would distract from the real issue which is whether the applicants have proved on the balance of probabilities that the properties were not acquired through or derived from stolen money in this case coins from parking meters being emptied in the course of his employment.   That does not require any finding by me that Mr Andelman was stealing coins before the period in respect of which he was charged and convicted.

[29]Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

72I turn then to the evidence on this issue.

73Sergeant Farnsworth gave evidence that based on his investigation he believed that stealing of coins from parking meters had been occurring prior to 1 July 2007.  I did not, however, regard his evidence as being specific to Mr Andelman.  He did say that during the execution of a search warrant at Mr Andelman’s house, a box from another type of meter had been found.  That may go to whether Mr Andelman was stealing more than the amounts charged during the charged period as those charged were only in relation to the “Reino MX” machine because it was the only type which recorded amounts paid into it, and there were several other types of meters being used by the City of Melbourne and emptied by employees of NPS. 

74Mr Robert Tatnell was called to confirm a statement he had made to police on 12 November 2008 and evidence he gave during the trial of Mr Andelman in May 2014. 

75In his statement to police in November 2012, Mr Tatnell said that with two other he had commenced stealing from meters in 2005.  He would receive about $3,000 each night, or varying between $2,000 and $3,000 on each night, and they would mainly do it towards the weekends, when there would be more money in the tubs.  He said that the stealing with two others went on for about six months. In relation to “Joseph Akmin”, which I take to be Mr Andelman, he says he was approached by this Joseph one day late year as to whether he wanted to make money of about $3,000 each time.  He worked with this Joseph only on Tuesday nights, and on those nights Joseph would pour the boxes after picking them up and he, Tatnell, would drive around to a pick up point organised with Joseph’s wife.  She would be in the car waiting.  The money would already be in canvas shopping bags with the coins always in bank money bags and then placed into the bigger bags.  There is no explanation as to how such sorting occurred.  He said that Joseph’s wife would take the money and it would go into the boot of the car, depending on what sort of car she brought, but most of the time it was the boot and he would keep two or three bags himself and would put them in his own car, but the majority went into Joseph’s.  He said, once loaded, Joseph would hand him cash, $3,000 to $3500 each time, and then they would finish their shift.  He knew that Joseph talked about buying houses.  He also knew Joseph went to Crown in the high roller area.  At the same time, Tatnell was stealing with another employee on Friday and Saturday nights.

76In his evidence in Mr Andelman’s trial, Tatnell said Mr Andelman would have the keys to undo the Reino boxes and take the full box out and put back an empty box.  Mr Andelman would put coins into a white cash bag and then pour into the white, blue or green bags and then put them into his wife’s car.  He described the coins being poured from the meter coin box into what he called bank cash bags and those into green or blue shopping bags.  They would then meet up with his wife in a car and transfer the shopping bags of coins into the boot of the car early in the morning between two or three o’clock.  He said he stole coins with Mr Andelman every occasion he was working with him.  The money given to him of $3,000 or so would be in notes which Mr Andelman withdrew from ATM machines.  They would drive around and go to banks for this to occur.  In cross-examination, he said that the approach by Mr Andelman to join him stealing from the boxes was when he started doing boxes instead of doing Duncans, probably about 2006 or 2007.  He maintained that he received $3,000 to $3,500 in cash from Mr Andelman every time they stole from meters, notwithstanding that on some of those occasions much less than that was stolen in coins.

77My impression was that Mr Tatnell was a witness on whom very little reliability could be placed.  As he presented before me, which is many years after the events in question, he effectively claimed no actual recall of events.  He also seemed to be in poor health and I infer that that might have affected his memory. 

78He was a co-offender at the time giving rise to a motive to minimize his own role and turn more blame on others.  Also relevant to his motivation and credibility was that he had given an undertaking to give evidence for which his own sentence had been moderated.  He had served a sentence of imprisonment, although not as long as Mr Andelman due to his plea of guilty and cooperation with the investigation.  He had pleaded guilty to three charges of theft covering the period 28 July 2007 to 12 November 2008 and totalling $288,440.

79Mr Andelman points out that Mr Tatnell was not charged with any thefts that he admitted committing in 2005 or 2006 or the first half of 2007. 

80I do not give much weight to Mr Tatnall’s evidence insofar as he purports to say that Mr Andelman was stealing coins from meters before July 2007.  His time frames to police and in his evidence in court were vague in part, and unreliable in other respects, such as saying that his stealing with two other men took place over about 6 months, whereas he says it started in 2005 and was continuing at the time when he says he was approached by Mr Andelman to steal with him on their shifts together.   Another aspects of his evidence which causes me to doubt its reliability, is that he says that Mr Andelman offered him about $3000 as his share of thefts on each occasion, which is about the same amount he says he had been receiving in stealing with the two other men before Andelman started. This undermines his claim that there was much more being stolen with Mr Andelman than previously.  Also, he describes his own brother, named Joseph, as having drawn him into this stealing, and as having a black car like the one he described Mrs Andelman as driving when collecting bags of coins from them.  Overall, I have given very little weight to Mr Tatnell’s evidence.

81Ms Saunders, of the employer, said[30] that the City of Melbourne communicated to her estimates for the 12 months prior to Mr Andelman’s arrest of $1,000,000 having being stolen from parking meters.  In her oral evidence, she said that was based on some conversations but also on a claim that was made on her company by the City of Melbourne for reimbursement of $1,000,000, a claim that was settled by negotiation.  Judge Chettle’s sentencing remarks refer to Ms Saunders stating in a Victim Impact Statement that that claim was settled for $115,000[31].    Leaving aside issues of weight, there is nothing in her evidence which raises the assertion that Mr Andelman was stealing coins from meters prior to the period in respect of which he was charged and convicted and thefts.

[30]Exhibit 9 affidavit made 3 February 2015, para 9

[31]Sentencing Remarks of Judge Chettle,4 July 2014, para 21

82Detective Senior Constable Gumley had sworn the original affidavit on which the Restraining order was based[32].  He also swore a more recent one for this hearing.  In his original affidavit he stated that audits conducted by the City of Melbourne was in the vicinity of $260,000 over a 12 month period from October 2007 to November 2008 but further enquiries had shown that  this figure was likely to be in the vicinity of $1,000,000 in the period of time since 2006[33]. Mr Gumley had no direct role in the investigations and had obtained much of his information for his affidavit from Det Farnsworth.  Mr Andelman elicited in cross-examination of Mr Gumley that his diary note of his conversation with Farnsworth on which this part of his affidavit was based had been that on 12 November 2008 there were 5 offenders in custody “re the theft of $250,000 to a million dollars”[34].   It seems to me that the manner in which the amount was expressed in the affidavit, by not repeating the range he had actually been given, gave an impression of thefts of much greater amounts than were proved.  In particular I do not regard it as reliable evidence going to show that Mr Andelman had been stealing coins since 2006.

[32]Exhibit 10

[33]Exh 10, Afficavit  of 5/12/08, paragraph 6

[34]T 400, lines 1-4

83The strongest evidence in my view that Mr Andelman may have been stealing coins during his employment duties prior to July 2007 is the evidence of the banking of large amounts of coins into his bank accounts and credit cards before then.  This evidence comes from Ms Tizzani, forensic accountant[35].  Mr Andelman challenges the overall reliability of her evidence, because when she was called to confirm her affidavit and attached written report, she sought to make 8 corrections to her statement, at least a couple of which seemed to me to be quite substantial[36].  Further, during cross-examination Mr Andleman pointed to several other errors she had made such as duplicating some items, and which when pointed out by him she acknowledged. 

[35]Exhibit 12, and oral evidence

[36]Eg a/c ening 6968 started 14/10/06 and not 1/7/09; para 24 unknown purchases corrected from $5795 to $130,095; paragraph 48 totals of coins and notes deposited;

84While it is not unusual for a few minor arithmetic or typographical errors to be found in reports of this nature, Mr Andelman’s criticism of Ms Tizzani’s report is not unfounded.  However, her report encompassed a large amount of material, and she confirmed that the source documents were available had for Mr Andelman call for or asked to inspect them.   I do not overlook that there were some mistakes made in her report, but I have no reason to believe any were deliberate, and the extent of the material analysed and summarized some of the carries some irresistible weight.  

85Deposits of large quantities of coins were being made into the Andelmans’ accounts from late January 2007.  As there is no explanation for those coins being deposited in those quantities, this evidence does in my view raise an inference that Mr Andelman had been stealing coins from his work over that period, although I do not consider that it supports such action any earlier than that.

86As I have said, I make no finding that Mr Andelman stole coins earlier than the period in respect of which he was charged and convicted. I am satisfied that the DPP’s evidentiary burden has been met to sufficiently raise as a possible inference that stolen coins were the source of funds used to acquire the restrained assets.  That conclusion means that to succeed in this application the applicants must prove on the balance of probabilities that those assets were not acquired with funds whose source was stolen coins.  

Unexplained Deposits of Coins

87Ms Tizzani summarizes that bank records show that between 18 October 2006 and 30 October 2008 $404,653.05 was deposited in coins into the bank accounts of Josef Andelman, Sofia Andelman and Josef and Sofia Andelman[37].  Schedule F, annexure F to her report sets out details of all deposits.  It is not a source document, but compiled by her.  She said and I accept that she obtained from banks copies of source documents to support every one of those deposits, a sample selection having been tendered[38], the references to her source documents being in the extreme right column of the schedule.

[37]Paragraph 48

[38]Exhibit 7

88Although the first deposit of coins was on 18 October 2006, of $150 in coins, the next was not until 3 months later, on 22/1/07 being of $449.  The following day there was $671.47 in coins presented at a different bank[39], then on 29/1/07 two deposits at different branches. On 1/2/07 $1320 in coins was deposited.  From late January 2007 until 30/10/08 there were frequent deposits of coins, ranging in amounts from hundreds of dollars to many of $1000 or $2000.  Some were exchanged for cash notes for at least part of the totals while other amounts were paid into accounts.  Some were deposited into account 6968 shortly before payments on the mortgage on the Tulip Grove   property were made (transferred to the mortgage loan a/c 2434), although there were other coin deposits made into a/c 6968 that did not coincide with mortgage payments.

[39]Westpac whereas the earlier two were at NAB

89During his evidence Mr Andelman unfolded and displayed with some pride that he has numerous credit cards.   Ms Tizzani’s report shows cash deposits to credit cards in his or his wife’s name or in both names, totalled more than $500,000 of which $211,372 was deposited in coin and a further near $11,000 in coin and notes.  Cash advances and withdrawals in cash from credit card accounts totalled $471,035.

90When it was put to Mr Andelman in cross-examination that there would have been much higher interest charged on cash advances from credit cards than from other accounts he seemed genuinely surprised.  The DPP submits that the quantity of transactions in cash into and out of credit card accounts can have no other reasonable explanation than being done to disguise or “launder” stolen coins.

91Mr Andelman gave no explanation in his evidence of the source of the multiple large amounts of coins deposited into his and his wife’s accounts or presented by one or other of them to be converted into notes.  While not directly asked to explain them during cross-examination, it was open to counsel for the DPP to take that tactical approach.  It seemed to me that Mr Andelman was also deliberate when he did not give any explanation for the source of the large amounts of coins[40].  As he was not represented I gave him specific opportunity to explain them before he concluded his evidence, but he did not do so[41].

[40]There was a clear opportunity to do so when being questioned about why he would be making deposits of coins at different bank branches on the same day if not to hide the quantity of coins – he diverted the explanation into a discussion of how many credit cards he has – T 222-223

[41]T 300, lines 8-17

92Mr McGregor, Counsel for the DPP, submitted that in this case the evidence of the depositing of large amounts of coins is like a fingerprint of the crime.  I accept that there is much force to this part of his argument.  I am less convinced by the other part of the argument that the depositing of coins shows a pattern of behaviour from which I should infer that Mr Andelman was stealing coins from 2006, a pattern which stopped completely from the time his employment with NPS was terminated.  The evidence in fact shows that frequent large deposits of coins started in January 2007.

93I accept the DPP’s argument that with coins being an inconvenient way of moving money, with the nature of the offending of which Mr Andelman has been convicted being the stealing of some $140,000 in coins, and the deposits showing Mr Andelman in possession of large amounts of coins over the period of his offending, they are like a fingerprint of the crime and they do leave a strong trail from the offending to the acquisition of at least some of the property.  The evidence of depositing of amounts of coins in $1000s into the account 6968 from which mortgage payments were made or sourced, indicates a direct link between those quantities of coins and part of the acquisition of the properties.   The failure of Mr Andelman to explain the source of the coins – at least those deposited into a/c 6968 from which mortgage repayments were sourced – leaves a very significant problem for him in proving what he must in this case, namely that the properties were not unlawfully acquired.

Was the restrained property lawfully acquired?

94Under s 22 (1)(a), it is not sufficient that the applicant satisfies the court that the immediate transaction by which the property was acquired was lawful, but if the circumstances require then the applicant must also show that the source of funds used was not unlawful. 

95Here the evidence is that Mr Andelman stole $142,560 in coins over the period from 1 July 2007 to 30 October 2008.  That in my view is sufficient to raise the inference that the assets acquired during that period were acquired at least in substantial part through use of stolen money. 

96The DPP has in my view satisfied its evidentiary onus by producing sufficient evidence as to the possible illegality of the acquisition or source of funds for significant if not the largest vast majority of the cost of each of the asset.  The applicants for exclusion must satisfy the court that the acquisition was not unlawful.

97As their income was not sufficient to have enabled anything more than a small part of the first mortgage to be paid during the relevant period of acquisition of assets, the only possible alternative sources of funds for the acquisitions of the three properties and 3 cars was from gambling winnings and coins paid into bank and credit card accounts.  For reasons already outlined, Mr Andelman did not give any explanation whatsoever of the source of the coin deposits, and he also did not adequately explain the source of his gambling bets to enable him to discharge the onus of proving that they were not, even indirectly, unlawful. 

Mr Andelman’s application

98For the reasons outlined, I am not satisfied that the source of funds for the substantial repayment of the loan on 6 Tulip Grove, Cranbourne, 55 Thunderbolt Drive Cranbourne, and most of the equity they currently hold in 42 Waterbury Street, Cranbourne, was not unlawfully acquired.  Similarly, apart from the $20,000 trade-in on the first of the 3 new vehicles purchses in August and September 2008, the source of the funds is not adequately explained to enable me to find that they were not unlawfully obtained.

99Based on the same findings, given the overlap in definitions, I am not satisfied that the property was not tainted property and was not derived property.

Mrs Andelman’s application

100     Mrs Andelman has not been charged with any offence.  As a person other than the accused, section 22(1)(b) applies to her application for an order excluding her interest in the property.   

101     For reasons already explained in relation to Mr Andelman’s application, I am not satisfied that the property in which she claims an interest is not tainted or derived property.  Therefore, Mrs Andelman must satisfy me-

(i) that she was not, in any way, involved in the commission of the Schedule 2 offence; and

(ii)       that she acquired her interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property.

Evidence as to Mrs Andelman’s involvement with the offending

102 The DPP argues that it has presented sufficient evidence to raise the inference that Mrs Andelman was involved at least partly in the offending, to have satisfied its evidentiary onus. Assuming that it has discharged its evidentiary onus, then it argues that Mrs Andelman has not discharged her onus to prove that she was not involved in any way involved in committing the Schedule 2 offence.

103     The primary evidence relied upon by the DPP in raising the inference of Mrs Andelman’s involvement in the offending comes from Mr Tatnall’s evidence, in his statement to police made on 12/11/08[42].  Mr Tatnall had described how he said thefts of coins from parking meters had been committed when he was rostered with Mr Andelman (whom he called “Joseph Akmin”).  He said that he would drive them to a pick up point that Joseph had organised, and his wife – he didn’t know her name but gave a description of her - would be in the car waiting. The car was a black 4wd or a black sedan, it would be about 3.30 to 4am, and the dropping off would take about but no more than five minutes. The money, already in bank money bags and placed in canvas shopping bags, and it would go into the boot or depending on what sort of car she brought, but most times the boot.  Although he said he kept 2 or 3 bags most, about 9 to 10 bags, would go into Joseph’s car. In his evidence at Mr Andelman’s trial in 2014, he said he had seen Joseph’s wife at the car when they transferred the bags into the boot of the car.

[42]“RWT 1” to Affidavit of Tatnall made 19/2/15, contained in Exhibit 2

104     Additional evidence relied upon as raising an inference of Mrs Andelman’s involvement was her name being on some deposit slips for the banking of coins[43].  Apart from documents showing a deposit of $1000 of coins into a/c 6968 on 16/10/07 filled in as being for Account name – Sofia Andelman, there are two undated documents of Westpac recording change required by Sofia Andelman, one for $1810 (recording that sum tendered as coins and change taken of $1710 in notes, and one for $650 of coins tendered of which $450 was taken in notes and $200 into an account.  Mrs Andelman was shown these bank slips and said that his wife’s name was not in her handwriting.

[43]Selection of deposit documents in Exhibit 7 -

105     During re-examination of Sergeant Farnsworth there was some further information elicited relevant to this issue, which I allowed to be given, after objections by Mr Andelman, subject to my eventually ruling on its admissibility[44].  Notwithstanding that I had urged Mr Andelman to write down to remind himself to say in evidence what I stopped him from saying from the bar table as part of his objection[45], he had forgotten these matters during his own re-examination, and on reviewing the transcript I did not remind him that he might wish to address further arguments to why this “evidence” about his wife’s possible involvement should not be admitted. The proposed evidence was to the effect that as a result of Tatnall’s statement that Mr Andelman’s wife used to meet them to collect bags of coins in the middle of the night shift, police reviewed information from mobile phone towers and these indicated that she left Cranbourne in the early hours of some mornings and moved to near the city and near Mr Andelman’s mobile phone, and then returned to Cranbourne.

[44]T 113, lines 13-31

[45]T 116, line 25- T 117,line3

106     Although I asked during final addresses[46] about various issues I had noted that I had taken subject to ruling on objections, I do not seem to have returned specifically to the mobile phone tower issue.  Although it was open to Mr Andelman to remind me and put further submissions about it to me, I take into account that he was representing himself and his wife, and that to recall these details without the legal background to understand the significance would have been difficult for him, especially as by the time of his final address the magnitude of the entire history of these events was clearly overwhelming him emotionally.

[46]T 521-524

107     Albeit unintentionally, I did not give Mr Andelman the opportunity to be heard further about the admissibility of the mobile phone movement information from Sergeant Farnsworth.  Further, it arose only very indirectly out of cross-examination.  It dealt with information which was not put before the court by affidavit – the only affidavit by Sergeant Farnsworth being about a now irrelevant vehicle, and as I understood it Sergeant Farnsworth was only called as a witness because of the request of Mr Andelman to cross-examine him.  In all of these circumstances I have decided that it would be unfair to the Applicants to admit it into evidence and I shall not take it into account on this issue.

108     I ruled as irrelevant and therefore inadmissible evidence that Mrs Andelman had been arrested and interviewed by police[47].

[47]T 521

109     Mrs Andelman gave no evidence, so there is no evidence before me that she denies being involved in committing thefts.

110     The first question for me is whether the evidence produced by the DPP raises the inference that she was involved in committing the offences such that she has an onus of disproving any such involvement. 

111     I have already said that I regard Mr Tatnall’s evidence with much scepticism, and give it minimal weight, not only because he was a co-offender quite likely to be minimising his own role and trying to shift greater responsibility to others, and as an informer seeking a discounted sentence for giving such evidence. In the hearing before me he claimed no direct recollection of most matters, and even with the passage of time and what appears to be a level of ill health on his part, my impression was that he was not being frank with the court.  

112     I also note that there are some details in Tatnall’s evidence that are inherently unlikely, such as insisting that on every occasion he was rostered with Mr Andelman they stole coins, and on every such occasion he was paid $3000 to $3500 as his share in notes, withdrawn from ATMs by Mr Andelman, with Mr Andelman taking most of the coins, when many of the thefts were of much less than that amount in total[48].

[48]During cross-examination in trial before Judge Chettle – T874-76 contained in Exhibit 2

113     There are two specific aspects of his evidence about Mrs Andelman which in my view reduce its likelihood of being true.  The first is that his version has the regular stealing of coins with Mr Andelman starting in 2006, when the unchallenged evidence is that Mrs Andelman did not yet have a driver’s licence.  Secondly, the cars she is described as driving to the pick-up points are a black SVU or black sedan.  It was not until August 2008 that the two Chrysler SVUs were purchased, there is no evidence of the colour of the Kia Sorrento Mr Andelman previously owned, or of what Mrs Andelman may have driven before August 2008.  

114     The evidence of Mrs Andelman having banked some large amounts of coins on three occasions does have some cogency in raising an inference that she was participating in the offending, as an accessory after the event.  Even then, it could not prove that at the time she was knowingly participating in the offending.

115 Ultimately I have decided that the DPP has not discharged the necessary evidentiary onus, and that is because what it seems to me it must raise as an inference is that she “was involved in the commission of the Schedule 2 offence”. To be a Schedule 2 offence, a single theft must be of $50,000, or multiple thefts total $75,000. The stealing of coins in the amounts that deposit slips tendered indicate she banked would not amount to a Schedule 2 offence, and Mr Tatnall’s evidence is so non-specific as to time periods, and amounts of coins except to describe shopping bags of bank bags of coins, that I am not satisfied that at its height it raises an inference that she was involved in the commission of thefts of at least $75,000.

116     This finding relieves Mrs Andelman from the consequences of not giving evidence at all and thereby not having denied generally that she was involved in the offending or specifically that she banked coins, or used to meet her husband and Mr Tatnall on their shift to collect bags of the coins that had just been stolen.

Did Mrs Andelman not know, or were circumstances not such as to arouse a reasonable suspicion, that the property was tainted or derived property?

117     Again an evidentiary burden is on the DPP to raise the inference that Mrs Andelman knew when the property was acquired that it was tainted or derived property, or that circumstances were such as to arouse a reasonable suspicion that the property was tainted or derived property.

118     On this issue I am satisfied that the DPP has discharged that evidentiary burden.  The DPP has produced evidence of the limited wage and DSS income of the family, and of very large amounts of cash by way of coins being deposited into various bank accounts and credit card accounts, mainly in joint names.  Even though she gave no evidence, I am satisfied by the manner of Mrs Andelman’s participation in the hearing, including her close following of documents in the court books, that she has a good grasp of her family’s finances.  I infer that she would have similar knowledge of them between 2006 and 2008.  I infer that she would have known of and noticed the large quantities of cash being deposited into their bank accounts and credit cards, and known that those amounts were not coming from her husband’s wages.

119     It is on this issue that the failure of Mrs Andelman to give any evidence herself is very detrimental to her case.  Although the proving of a negative proposition as outlined in s 22(1)(b)C is a difficult concept, she failed to even state in general terms, that she did not know or suspect that the source of the funds to buy all or some of the property was stolen.     Further, the evidence adduced by the DPP called for her to give some details of what she did know about the source of funds for these acquisitions, and why they did not cause her to suspect they were derived from stolen coins from her husband’s work.

120     I accept that at the time of the purchase of the land and building contract for 6 Tulip Grove, it was not beyond reasonable expectation for the Andelmans that they could afford that on his wages, with the assistance of the first home owners’ grant and more than 95% of the price borrowed from a bank.  I accept that the bank assessed their income as entitling them to borrow at least that much, and to make repayments of $960 per fortnight, which was about 65% of his “take-home” wage.  Notwithstanding that they also received family and child support DSS benefits, I infer that the distribution of the remaining income for a family of five would be likely to have been watched very closely.  

121     The problem for Mrs Andelman’s case in respect of 6 Tulip Grove, arises in respect of the points in time when the loan was substantially reduced and then completely repaid by November 2008.  Those substantial repayments all occurred after the commencement of the period in respect of which Mr Andelman has been convicted of multiple thefts.  Her knowledge about the source of the funds that completed the acquisition of that property called for some explanation and she gave none. There was no evidence from her as to a belief that that was all possible through legally acquired funds.  I infer that those circumstances must have caused her to at least ask her husband the source of the funds.  She has not provided the court with any evidence about what she was told or what she believed was the legitimate source of the funds that totally repaid the loan on 6 Tulip Grove.

122     Mr Andelman’s explanation is that the funds came from his substantial winnings at Crown Casino.  However the source of the funds that he bet to gain those winnings is not adequately explained, and in particular, the source of the substantial coin payments into accounts from which he withdrew including cash advances, is not explained by him at all. 

123     Further, about a year into the period of Mr Andelman’s proven offending, and over the same period that the Tulip Grove mortgage was fully repaid, there were funds not only for the initial purchase with another large mortgage loan, but also total repayment of that loan, of the property at 55 Thunderbolt Drive.  There was also the purchase albeit with another large mortgage that is not yet repaid of a third property at 42 Waterbury Street.  Additionally, there was the purchase of three new vehicles within a month. 

124     All of these purchases called for some evidence from Mrs Andelman as to what she knew or believed about the source of funds for them. Viewed objectively, the circumstances called for some query on her part as to their affordability.  Therefore, there needed to be some evidence as to what she thought or believed was the source of funds for such purchases for her to have any prospect of satisfying the court that she did not know that the source of the funds was stolen money, and that the circumstances as she understood them would not give rise to a reasonable suspicion that they were tainted or derived property.

125     Further, as I consider that Mrs Andelman would have had knowledge and access to statements of all or at least most of their joint bank and credit card accounts, I infer that she must have noticed the very large amounts of cash payments into those accounts and cash advances and withdrawals.

126     A considerable number of the withdrawals were at Crown casino, and there is no evidence at all about her knowledge of his gambling patterns except that he speaks of them as if she was aware that he gambled there regularly.  With what I infer was her knowledge of the limits of his wages and the DSS payments,  I infer that she would have asked him from time to time how they could afford the amounts he was withdrawing to gamble. 

127     I also infer that she knew that his job frequently involved the collection of coins from parking meters.  Large quantities of coins were being banked into their bank and credit card accounts, some of them by her, and she knew that those coins could not have come from his wages or from DSS payments as both were deposited directly into bank accounts and not paid in cash at all.  Viewing these circumstances objectively it is hard not to infer that a reasonable suspicion would have been aroused in a person in her position that the acquisitions of the property and vehicles was being funded with stolen coins stolen from his work.  Her failure to give evidence with some plausible explanation for what she thought was the lawful source of these deposits does nothing to satisfy the court that she did not know, or that the circumstances were not such as to arouse a reasonable suspicion, that they were stolen.

128     Ultimately, with no evidence from Mrs Andelman to explain what she knew or believed about the source of funds for the purchase and repayments on the properties, and for the vehicles, and in light of the evidence of the circumstances, I am not satisfied that she did not know that the vehicles were bought, and repayments on the properties made with funds that were derived from stolen money, namely derived from coins stolen from parking meters he was emptying.   Further, she has not satisfied me that the circumstances were not such as to arouse a reasonable suspicion that the source of the funds for these acquisitions was money stolen during his employment duties.

Conclusions

129     For the reasons outlined, the applications of both Mr Andelman and Mrs Andelman for exclusion of their respective interests in each of the items of property restrained, must be dismissed.

130 I recognise that this is a very harsh consequence for the Andelman family, particularly as I am satisfied that there were some funds involved in the purchases, specifically of 6 Tulip Grove, and of the first vehicle due to the trade-in of a previously owned vehicle, which were lawful and not tainted property or derived property. However, my understanding of the consequences of the operation of automatic forfeiture under the Act, Mr Andelman having been convicted of Schedule 2 offending, is that I do not have the power to exclude those amounts I am satisfied were lawfully obtained.

CI-08-05305

Andelman - v – DPP

SCHEDULE OF DOCUMENTS EXHIBITED

Number and Identifying Mark on Exhibit	Short Description of Exhibit	Court Book Ref
A	Affidavit of Mr Josef Andelman dated 16 December 2014 together with accompanying exhibit, Affidavits of Mr Josef Andelman dated 23 February 2015 together with exhibits, Affidavit of Mr Josef Andelman dated 11 March 2015 and 18 pages of National Australia Bank accounts	CB111-168
B	Copy of Award of Excellence to Josef Andelman from New Breed Security Australia dated 30 March 2006
C	List from Porter Davis Homes of payments for lease and reimbursement for Lot 1501 Waterbury Street Cranbourne and attached details
D	National Australia Bank loan documents relating to 55 Thunderbolt Drive, Cranbourne	CB189-206 (inclusive)
E	NAB loan documentation relating to 6 Tulip Grove, Cranbourne	CB217-236 (inclusive)
F	NAB documentation relating to loan for 42 Waterbury Street, Cranbourne.	CB237-261 (inclusive)
G	Photographs numbered 87,70,86,85,91,62 and 68
H	Copy of settlement sheet for trade-in of vehicle Carnival registration UYG 070 dated 19 August 2008
J	Contract for sale of used vehicle 30 April 2014
1	Affidavit of Sargeant Travis Farnsworth sworn 3 March 2015
2	Affidavit of Mr Rodney Tatnall made 19 February 2015 and two exhibits	CB413-468
3	Copy of Statement of Adjustments on Sale of 55 Thunderbolt Drive, Cranbourne dated 4 June 2010
4	National Protective Services timesheet for Mr Josef Andelman for the period 22 April 2008 to 17 May 2008
5	Copy of affidavit of Mr Andelman made 20 February 2009 in support of application under section 143 for Legal Aid
6	Mr Josef Andelman’s Customer Declaration Form for Newstart Allowance signed on 29 November 2008
7	Bundle of 45 pages of deposit slips from banks
8	Affidavit of Michelle Louise Fielding sworn 18 February 2015 with Exhibit MLF-1 and attachments (being CB300-373)	CB297-373
9	Affidavit of Rachaell Saunders sworn 3 February 2015 with exhibited payslips (CB372-412)	CB372-412
10	Affidavit of Anthony James Gumley sworn 5 December 2008 together with Exhibits AJG1-AJG 8	CB5-39
11	Affidavit of Anthony James Gumley sworn 24 February 2015 together with Exhibits AJG1 – AJG 5	CB471-518
12	Affidavit of Ms Rose Tizzani sworn 19 February 2015 together with Exhibit RT1 (CB264-296) and annexures to that statement, including amendments to statement and annexures	CB262-296
13	Bundle of bank statements on NAB account number 86-296-6968