Dang v The State of Western Australia
[2020] WASC 419
•23 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DANG -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 419
CORAM: ALLANSON J
HEARD: 16 NOVEMBER 2020
DELIVERED : 16 NOVEMBER 2020
PUBLISHED : 23 NOVEMBER 2020
FILE NO/S: CPCA 4 of 2011
BETWEEN: THI HANG DANG
First Plaintiff
LINH LUU DANG
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Where respondent declared drug trafficker - Where respondent had years earlier opened bank accounts in names of children - Whether evidence that respondent had effective control of that property at time she was declared to be a drug trafficker
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 8, s 30, s 51, s 156
Evidence Act 1906 (WA), s 79C
Misuse of Drugs Act 1981 (WA), s 32A
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | In person |
| Second Plaintiff | : | No appearance |
| Defendant | : | M Seaman |
Solicitors:
| First Plaintiff | : | In person |
| Second Plaintiff | : | No appearance |
| Defendant | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Citigroup Pty Limited v National Australia Bank Limited [2012] NSWCA 381; 82 NSWLR 391
N Joachimson (A Firm Name) v Swiss Bank Corporation [1921] 3 KB 110
Re French Caledonia Travel [2003] NSWSC 1008; (2003) 59 NSWLR 361
ALLANSON J:
I heard the State's application on 16 November 2020. I gave my decision immediately, with reasons to be published.
Introduction
On 30 November 2010, on an application under the Criminal Property Confiscation Act 2000 (WA), a Justice of the Peace made a freezing notice for property specified in sch 2 to the notice.[1] The freezing notice was made on the basis that Thi Hang Dang had been charged with an offence and could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) if convicted.
[1] WAPFN 100253. Two further freezing notices were made in relation to other property but are not relevant in this application.
The property specified in sch 2 included (in terms of the Criminal Property Confiscation Act) 'all or any property that is owned and/or effectively controlled by' Ms Dang. It specifically referred to money standing to the credit of two Commonwealth Bank of Australia Ltd accounts and any and all interest payable on such money. The two accounts were identified by account number, which I will not reproduce in these reasons. One account was in the name of Thanh Long Dang; the other in the name of Linh Luu Dang ‑ Ms Dang's children.
On 27 January 2011, Ms Dang commenced proceedings to set aside the freezing notices and for the property in each notice to be released to her.
On 22 July 2013, after trial, Ms Dang was convicted of offences including selling a prohibited drug, methylamphetamine, and supplying a prohibited drug, MDA or ecstasy. She was sentenced to imprisonment. Relevantly, a declaration was made under s 32A(1) of the Misuse of Drugs Act.[2]
[2] Affidavit of Mr Marrapodi, JDM 20.
Under s 8(1) of the Criminal Property Confiscation Act:
When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated ‑
(a)all the property that the person owns or effectively controls at the time the declaration is made;
(b)all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
The proceedings
Following the declaration under s 32A(1) of the Misuse of Drugs Act, the State of Western Australia, the defendant in the proceedings brought by Ms Dang, applied by summons for orders that the objection by Ms Dang to the confiscation of frozen property be dismissed. The State also sought an order, pursuant to s 8(1) and s 30 of the Criminal Property Confiscation Act, declaring that the property identified in the summons had been confiscated to the State of Western Australia.
The property identified in the summons included 'money standing to the credit' of Thanh Long Dang and Linh Luu Dang in the two bank accounts.
The holder of a bank account that is in credit has a right to demand repayment and a cause of action to recover all or part of the balance of the account.[3] There is no doubt that the rights of an account holder against the bank are property within the meaning of the Act, and subject to confiscation.[4] The question is whether those rights were effectively controlled by Ms Dang at the time she was declared to be a drug trafficker.
[3] Citigroup Pty Limited v National Australia Bank Limited [2012] NSWCA 381; 82 NSWLR 391 [41] (authorities omitted). N Joachimson (A Firm Name) v Swiss Bank Corporation [1921] 3 KB 110, 127; Re French Caledonia Travel [2003] NSWSC 1008; (2003) 59 NSWLR 361 [32].
[4] The definition of property in the Act includes real or personal property of any description, or a legal or equitable interest in any property: Criminal Property Confiscation Act, Glossary.
This matter has taken some years to get to this stage. It is seven years since Ms Dang was declared to be a drug trafficker.
On 28 May 2020, Archer J made orders regarding the evidence that could be relied on in the application. The State relied on the affidavit of Joseph Domenic Marrapodi, sworn 18 December 2014, and its many attachments to that affidavit. The affidavit stood as Mr Marrapodi's evidence‑in‑chief.
On 22 September 2020, her Honour further ordered:
1.If either plaintiff wishes to adduce evidence in the hearing of the State's application for a declaration that property has been confiscated (State's Application), they must do so by affidavit, and any such affidavit or affidavits must be filed by 4.00 pm on Tuesday, 20 October 2020.
2.If the State wishes to adduce additional evidence, it must do so by filing any such additional affidavits by 4.00 pm on Tuesday, 3 November 2020.
I heard the State's application on 16 November 2020. The only evidence adduced was the affidavit of Mr Marrapodi.
Ms Dang was not represented. She appeared by video from Bandyup Women's Prison, assisted by an interpreter.
The bank accounts
Pursuant to the Criminal Property Confiscation Act a person has effective control of property if the person does not have the legal estate in the property, but the property is directly or indirectly subject to the control of the person'.[5]
[5] Criminal Property Confiscation Act s 156.
The question of effective control must be considered in the context of s 51 of the Criminal Property Confiscation Act by which any dealing with property after it was the subject of a freezing notice has no effect on the rights of the State under the Act.
The two bank accounts were opened on the same day, 30 November 2000. Thanh Long Dang was then seven years old; Linh Luu Dang was five years old.[6] Ms Dang was the signatory on each account. At that time, it may be inferred, she had effective control of the accounts.
[6] Based on the dates of birth recorded on the account statements: affidavit of Mr Marrapodi, JDM 22 and JDM 23.
On 30 November 2010, when the freezing notice was made, the children were 17 and 15. Each was old enough to operate a bank account.
When the drug trafficker declaration was made in 2013, each of Ms Dang's children was an adult.
On 16 December 2010, the account in the name of Thanh Long Dang had a credit balance of $18,869.31. The account in the name of Linh Luu Dang had a credit balance of $18,942.32.[7]
[7] Affidavit of Mr Marrapodi, JDM 9.
The evidence of effective control
The State relies on two statements, attached to Mr Marrapodi's affidavit, to prove that the bank accounts were under the effective control of Ms Dang.
The first statement is a statutory declaration made by Wai See Catherine Cheng, a solicitor employed by the Commonwealth Bank, on 17 December 2010. Ms Cheng declared, on the basis of enquiries she had made or caused to be made within the Bank, that the two accounts each had a credit balance and 'are currently under the control of [Ms] Dang'.[8] Ms Cheng did not disclose what enquiries were made, or on what basis she made that statement about control of the accounts. She did not demonstrate that she was a qualified person, within the meaning of s 79C of the Evidence Act 1906 (WA), or say that her statement as to the control of the accounts was derived from or reproduced a business record. She did not otherwise identify the source of her information. I am not satisfied that, even having regard to the facilitative provisions of s 79C, I can accept her declaration as proving effective control of the accounts in December 2010.
[8] Affidavit of Mr Marrapodi, JDM 9.
The second statement was made by Detective Senior Constable Bradley Denham Wright, on 13 August 2014. Detective Wright related his attendance at Bandyup Prison, on 30 July 2014, for the purpose of interviewing Ms Dang. He said that he was accompanied by a Vietnamese interpreter. Detective Wright stated that Ms Dang told him she was the sole person who was able to make deposits and withdrawals from the accounts and that the money most likely came from casino winnings.[9]
[9] Affidavit of Mr Marrapodi, JDM 26.
Detective Wright did not give evidence. The State relied on his statement for the truth of its contents. As an attachment to the affidavit of Mr Marrapodi, the statement is hearsay. It is also based on what the interpreter told him Ms Dang said. There is no statement from the interpreter. Even if the State could overcome the fact that Detective Wright did not give evidence, without evidence from the interpreter there is no admissible evidence about what Ms Dang said during that interview.
In an earlier hearing in this matter, on 12 March 2015, Mitchell JA questioned the admissibility of the State's evidence as hearsay.[10] Nothing has been done to supplement the evidence to overcome the hearsay question.
[10] ts 12 March 2015, 5-6.
The opening statements for each account can be received as business records. Each shows Ms Dang as the signatory in 2000. But the children were then very young.
The onus is on the State to prove that Ms Dang had effective control of the two bank accounts at the time of the freezing notice in 2010 and, accordingly, at the time she was declared to be a drug trafficker in 2013. When the law requires proof of a fact, the tribunal of fact 'must feel an actual persuasion of its occurrence or existence before it can be found'.[11]
[11] Briginshaw v Briginshaw (1938) 60 CLR 336, 361.
There are situations where, in the absence of evidence to the contrary, the court will infer that a state of affairs remains unchanged. It is possible that Ms Dang remained in effective control of the accounts in 2010.
But in the absence of evidence about who had effective control of the accounts after the children were old enough to conduct their own accounts, I am not satisfied that I should infer that Ms Dang retained effective control.
The State has not proved effective control. The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson23 NOVEMBER 2020
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