Director of Public Prosecutions v Fuller

Case •

[2018] NTSC 44

•

29 June 2018

CITATION:Director of Public Prosecutions v Fuller [2018] NTSC 44

PARTIES:DIRECTOR OF PUBLIC PROSECUTIONS

v

FULLER, Tony John

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:52 of 2011 (21114602)

DELIVERED:  29 June 2018

HEARING DATES:  21 May 2016, 26-27 July 2016, 30-31 January 2017

JUDGMENT OF:  Barr J

CATCHWORDS:

CRIMINAL PROPERTY FORFEITURE – Application for forfeiture order in relation to crime-derived real and personal property – property restrained by previous court orders – respondent an objector – as objector respondent bears onus of proving that property not crime-derived – balance of probabilities – applicant bears onus of proving that property is crime-derived – also balance of probabilities – objection not made out – dismissed – held more likely than not that the restrained property is crime-derived – formal order that the restrained property be forfeit to the Territory.

Criminal Property Forfeiture Act s 6(a), s 10(2), s 11(1), s 12(1), s 41(2), s 43(2), s 44(1), s 44(1)(a), s 44(3), s 50(3), s 59, s 64(1)(b), s 95(2), s 95(3)(b), s 97

Jones v Dunkel (1959) 101 CLR 298; Fuller v The Queen [2013] NTCCA 10, referred to.

REPRESENTATION:

Counsel:

Applicant:R Jobson, S McGregor

Respondent:  in person

Solicitors:

Applicant:Office of the Director of Public Prosecutions

Respondent:  N/A

Judgment category classification:    B

Judgment ID Number:  Bar1806

Number of pages:  23

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Director of Public Prosecutions v Fuller [2018] NTSC 44

No 52 of 2011 (21114602)

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

AND:

TONY JOHN FULLER

Respondent and Objector

CORAM:     BARR J

REASONS FOR JUDGMENT

(Delivered 29 June 2018)

  1. On 25 May 2011, the applicant obtained restraining orders under the Criminal Property Forfeiture Act (“the CPFA”),[1] including an order restraining real property at 187 (6466) Lee Point Road Wanguri (“the house”), a partly completed house registered in the name of the respondent and his wife, Wilaiwan Fuller. The orders also restrained (inter alia) the respondent’s Commonwealth Bank Streamline account, his Mariner 34-foot motor cruiser (“the boat”) and his Holden utility (“the vehicle”).

  2. The restraining orders were granted on the basis that the Court found that there were reasonable grounds for suspecting that the house and other property were “crime-derived property”,[2] that is, property derived in whole or in part, directly or indirectly, from an offence punishable by a term of imprisonment of two years or more.

  3. The applicant subsequently made application under s 95(2) CPFA for an order that the restrained property be forfeit to the Territory. Under s 97 CPFA, the Court must make a forfeiture order if satisfied that it is more likely than not that the property is crime-derived.

  4. Objections to the restraint of the property were filed pursuant to s 59 CPFA by the respondent and Wilaiwan Fuller.[3] The respondent claimed that he had acquired all the restrained property with income lawfully obtained, or through his inheritance. He also said that Anastasios Poullas had, for legitimate reasons, contributed $150,000 to the construction of the house.[4] Mrs Fuller, as joint owner of the house, asserted that her interest in the house was not crime-derived, nor was it unexplained wealth. She claimed to be an innocent party.[5]

  5. The Court was required by s 95(3)(b) CPFA to hear and determine the objections before it could hear the applicant’s application for the forfeiture order referred to in [4]. Mrs Fuller did not ultimately pursue her objection, which meant that the only objection heard and determined was that of the respondent himself.

  6. In order to set aside the restraining order affecting the suspected crime-derived property, the respondent is required by s 64(1)(b) CPFA to establish that it is more likely than not that the property is not crime derived. Similarly, as mentioned in [3], in order to persuade the Court that the restrained property should be forfeit to the Territory, the applicant has to satisfy the court under s 97 CPFA that it is more likely than not that the property is crime derived.

  7. In support of its case that the restrained property is crime-derived, the applicant relies on evidence led by the prosecution at the respondent’s trial for forfeiture offences, which I briefly summarize in [8] to [15] below. The summary is taken from the Court of Criminal Appeal judgment.[6]

  8. The respondent was found guilty by a jury and convicted by the Supreme Court on 14 May 2012 of charges under the Misuse of Drugs Act (NT) as follows: one count of supplying a dangerous drug, six counts of possessing a dangerous drug, one count of possessing precursors for dangerous drugs, one count of possessing articles for the use in manufacturing or producing dangerous drugs or precursors, and one count of possessing tainted property, namely, $137,655 in cash.

  9. The respondent’s offending occurred over a period extending from 20 June 2007 to 30 March 2011 (“the indictment period”). The Crown case was that the appellant supplied methamphetamine during that period. When Police executed a search warrant at the respondent’s two properties, in Wulagi and Wanguri (the house), they seized a number of items, including five notebooks, various quantities of methamphetamine, $137,655 in cash, electronic scales, a .45 calibre handgun and a quantity of .45 calibre bullets. The Crown alleged that the $137,655 represented the proceeds, either directly or indirectly, of the supply of methamphetamine.

  10. The Crown case against the appellant was strong. In addition to significant unexplained wealth, the evidence against him included the drugs and the other things found at the appellant’s home and workplace: scales, cutting agents, glassware, and the pre-cursor pseudoephedrine; cash amounting to $137,655; and the firearm and ammunition found by police at the appellant’s home. The five note books referred to in [9] contained records of, or entries in relation to, a large number of drug transactions. There were references to weights of drugs, types of drugs and calculations of projected profits from drug deals. DNA and fingerprint evidence established at least the probability that the accused made all relevant entries in the note books. A forensic accountant, Robert Bruce Wall, provided expert evidence based on an analysis of the notebooks and other records of the appellant, including bank statements and tax returns.

  11. Although the appellant initially denied having written any of the material in the notebooks or indeed having any connection with the notebooks, fingerprint and DNA evidence linked the appellant with the notebooks. Moreover, the handwriting expert, Black, was of the opinion that the writing in the notebooks was made by the same person who had written the sample handwriting contained in a diary provided to him for his examination. The appellant admitted in cross-examination that the diary was his and that he was the author of most of the writing in the diary.

  12. The evidence of significant unexplained wealth included evidence of the purchase of real property at Wanguri for $348,000 cash, redevelopment of that property at a cost exceeding $500,000, the purchase of a boat for $58,000 cash and the purchase of a car for $19,500 cash after trade in.

  13. The respondent’s appeal to the Court of Appeal was dismissed. The appeal court found that there was more than sufficient evidence for the jury to have been satisfied beyond reasonable doubt that the five notebooks were authored by the appellant and that they proved consistent drug selling over the indictment period.

  14. The applicant’s case, that the property referred to in par [1] is crime-derived, is based largely on inference to be drawn from (1) the respondent’s proven activities as a drug dealer and (2) the fact that the significant funds used to acquire the property were cash from unidentified sources.

  15. In relation to the purchase of the house, I am satisfied on the balance of probabilities as to the following matters. The deposit of $36,700 was paid from the respondent’s bank account to the trust account of the selling agent. The balance of the purchase price for the house was paid by three bank cheques purchased by the respondent, two for relatively small amounts and one for $328,874.75. The latter was purchased on 28 August 2009 and the bank records show that it was paid for in cash.[7] The house property was transferred to the respondent and his wife on 31 August 2009.[8] After the respondent and his wife became the owners of the house, the respondent carried out substantial building improvements. The cost of those improvements was assessed by an expert quantity surveyor, Charles Wright, as being in excess of $500,000.

  16. In relation to the purchase of the boat, the respondent paid the vendor the agreed price of $58,000 in cash, on 25 March 2009.[9]

  17. In relation to the purchase of the vehicle, the respondent traded in two vehicles and paid the outstanding balance of purchase price, $19,250 in cash, on 14 March 2009.[10]

  18. The respondent sought to explain in evidence how he came to accumulate or be in possession of the significant amount of cash used for the purchase of the restrained property.

  19. In his affidavit sworn 19 September 2011, the respondent claimed that between December 2007 and December 2009 he had been paid cash amounts totalling $58,400 by Daniel Clee (the respondent’s stepbrother) for building work carried out at a property in Berry Springs.[11] There is no supporting evidence as to the nature and extent of the building work alleged to have been carried out, nor as to the alleged payments to the respondent by Mr Clee.

  20. In the same affidavit, the respondent claimed that the balance of the purchase price for the house ($331,336.51) “came from personal funds”. He provided no further detail. He claimed that the boat was purchased “with cash from declared income and savings”. He claimed that the balance of monies used for the purchase of the vehicle “was paid from legitimately earned income”.[12]

  21. In an affidavit sworn 13 January 2012, Wilaiwan Fuller deposed that the money used to purchase and improve the house property was “a combination of funds saved from legitimately earned income, winnings and money entrusted to [her] by her late father-in-law [the respondent’s father], Brian Fuller.” Wilaiwan Fuller claimed that her father-in-law had entrusted her with approximately $165,000 in late 1998, shortly prior to his death. Mrs Fuller’s affidavit reads as follows:

    At Christmas time 1998, just prior to Dad passing away, he approached me at his home in Ulladulla. Dad and I had a lengthy conversation at this time about money and he discussed Tony and my plans for the future.

    Dad pressed upon me the importance of saving for our future, as he always had. Following that conversation he entrusted me with approximately $165,000 on the condition that I keep it safe and only use it towards the purchase of our family home. The money he gave me was money he had been putting aside for Tony and I during the years Tony worked for his father at Fuller Motors Pty Ltd. Tony didn’t know about the money his father had entrusted me at that time.

    The money was held by me privately at our home in Bangor, New South Wales until we moved to Darwin in 2005 and thereafter was kept at our current address.

    I continued to make regular contributions towards our savings and they grew consistently over a number of years. From time to time those savings were boosted by periods of higher earnings by Tony. These periods included around 2001 when Tony won Powerball Lotto and also in about 2003 and 2004 when Tony received a number of payments from Autolink for money he had invested in the business.

    In about June 2005 we moved to Darwin and Tony completed the building work on his mother’s house. It was around this time the Tony and I decided to purchase a block of land and build our family home. Our savings had been built up over many years. With our savings and the money entrusted to me by Brian Fuller, we had enough to build our home.

    I deliberately withheld from Tony the full extent of our savings for many years. From time to time, I would disclose how we were placed financially, but only when necessary.

    Tony and I attended the Westpac bank at Casuarina on 28 August 2009 with a significant portion of the money we had saved. We purchased a bank cheque in the amount of $328,864.75 from the funds we had saved for the purchase of 187 Lee Point Road. None of the money used to purchase the house was illegitimate or unexplained. We made no attempts to hide this as being a cash transaction because it was money we had saved for many years.[13]

  22. Wilaiwan Fuller did not give oral evidence, and counsel for the applicant objected to the respondent attempting to rely on the contents of his wife’s affidavit. The respondent nonetheless referred in oral submissions to parts of Mrs Fuller’s affidavit as though it were in evidence, and as though the evidence were true. Accordingly, I make the following comments. The evidence of Wilaiwan Fuller is highly improbable. Even if it is possible that such a significant amount of cash had been secretly entrusted to Mrs Fuller by her father-in-law, it is improbable that Mrs Fuller would not have disclosed the gift to her husband, the respondent, well before the cash was used to purchase the house in August 2009. It is improbable that Mrs Fuller would have kept such a large amount of cash for so many years without the respondent being aware of it. It is improbable that Mrs Fuller would not have banked the money, both for security reasons and to earn interest.  There was no reason not to bank the money. Mrs Fuller does not say when she informed the respondent of the $165,000 allegedly entrusted to her by her father-in-law, and of the almost equivalent additional amount she had astutely managed to save. However, if one were to assume that Mrs Fuller’s evidence were true, then Mrs Fuller would most probably have told the respondent about the extent of the couple’s savings prior to their contracting to purchase the house property in August 2009. Otherwise, logically, the couple would probably not have contracted to purchase the property.

  23. If everything deposed to by Mrs Fuller were true, then one might readily imagine how pleasantly surprised the respondent was that his wife had managed to accumulate almost $330,000 in cash to enable the couple to purchase the house property. It would be extraordinary if he did not make some enquiry about the source of the cash funds, and in response learn of his long-deceased father’s generous gift. There was no longer any reason for Mrs Fuller not to disclose the gift. No doubt the respondent would have been moved to learn that his father had secretly entrusted approximately $165,000 to Mrs Fuller more than 10 years previously.

  24. Given the most unusual circumstances alleged, it is indeed remarkable that the respondent did not mention them at the time he swore his affidavit of 19 September 2011 in which he said, simply, that the balance of $331,336.51 “came from personal funds”. It would be even more remarkable that he did not mention such a significant family gift when seeking to demonstrate his legitimate accumulation of cash money when giving evidence at his Supreme Court trial. It would have been in his interests to do so, and there was no reason not to do so.

  25. I inferred that the evidence of the alleged $165,000 gift and subsequent accretion to the fund from Mrs Fuller’s saving practices was fabricated. However, it is not necessary for me to make formal findings because, as mentioned in [22], Mrs Fuller did not give evidence at the hearing and her affidavit was not received into evidence.

  26. In his affidavit of 19 September 2011, the respondent also deposed that, between 24 October 2010 and 16 March 2011, he was loaned amounts totalling $150,000 by Anastasis Poullas. He claimed to have received $27,000 cash on 24 October 2010; $38,000 cash on 22 December 2010; $30,000 cash on 14 January 2011, and $55,000 cash on 16 March 2011.[14]

  27. The respondent’s evidence was corroborated by the affidavit evidence of Mr Poullas, who deposed that he made an interest-free loan to the respondent in the sum of $150,000 pursuant to an agreement to assist the respondent to complete his home. Mr Poullos corroborated the specific amounts of cash and the specific dates of payment/receipt referred to by the respondent.[15] The quid pro quo for the interest-free loan was said to have been the respondent’s agreement that his house could be an exhibition home for the new product range of Mr Poullas’s construction company.

  28. Mr Poullas did not give oral evidence, and the applicant objected to the respondent attempting to rely on the contents of Mr Poullas’s affidavit. Therefore, it was not evidence before me. However, I note in any event that it was not asserted that Mr Poullas had advanced any monies before 24 October 2010, whereas the bank cheque in the sum of $328,874.75 used to acquire the house was purchased from the bank on 28 August 2009. The vehicle and the boat had both been purchased in March 2009. Therefore, even if the evidence of the respondent and Mr Poullas in relation to the $150,000 interest-free loan were accepted, it would not explain how the respondent had the significant amount of cash he spent to acquire the restrained property in March and August 2009. Moreover, if Mr Poullas had later contributed financially to the construction of the house, on the basis alleged, that would not change the legal characterisation of the house as ‘crime-derived property’ within the meaning of s 12(1) of the Act, that is, property wholly or partly derived, directly or indirectly, from the commission of a forfeiture offence. The same principle would apply in the event that the respondent himself had carried out building works and/or had used legitimately earned income of his own in effecting improvements to the house property after purchasing it in August 2009.

  29. The respondent also sought to establish that the quantity surveyor’s assessment of an amount in excess of $500,000 as the cost of building the house was unreliable, in part because the respondent had actively involved himself in supervising the construction work and had minimised costs by personally carrying out a substantial amount of the labour. In relation to this part of the respondent’s case, it would not be necessary to make findings if, for reasons explained in [28], the house was crime-derived from the time of its acquisition.

  30. A significant issue at the hearing in July 2016 was whether crime-derived monies were used to buy the bank cheque for $328,874.75 referred to in [15] and the boat and vehicle. The respondent contended they were not. He claimed that he had always been a ‘cash man’, someone who believed that he should not buy anything unless he had the money in cash. As a result, it had always been his habit to keep substantial amounts of cash on hand, in his words, a “cash stash”.

  31. The respondent prepared a table, tendered as Exh “TJF1”, in which he set out his claimed gross income, less income tax and cost of living expenses, for the financial years ended 30 June 2000 through to 30 June 2011. The table included significant amounts, represented by the respondent to have been his disposable income for each of the financial years.

  32. The purpose of the table was to demonstrate a level of disposable income which (it was said) enabled Mr Fuller to accumulate the substantial amount of cash which he used to purchase the house property, the boat and the vehicle.

  33. The total alleged disposable income in Exh “TJF1” depended on the claimed receipt by the respondent, from a business named Autolink, of annual gross income of $156,000 (or $156,102) in the five financial years from year ending 30 June 2000 through to year ending 30 June 2004 (a period ending three years prior to the start of the indictment period).

  1. When he was questioned as to why the Australian Taxation Office had no record of wages paid to him by Autolink, the respondent said that he was employed by, or at least, paid by, a company or companies related to Autolink. He claimed that he received salary or wages from three companies altogether.

  2. Apart from Mr Fuller’s assertions, the only evidence to support the claimed level of gross earnings in the relevant years consisted of eight pay slips in the 2002 and 2003 financial years indicating that he received $3,000 per week for eight weeks.[16] There was no other evidence as to the receipt of regular income during the five financial years referred to.

  3. Mr Fuller attached great significance to the fact that he declared such high levels of income. Logically, a taxpayer would not declare more income than was actually received, because that would result in an unnecessary tax liability, and cause the taxpayer financial disadvantage. I need to question why Mr Fuller might wish to over-declare his income and cause himself such financial disadvantage. In this context, I note that it was not until after his arrest and shortly prior to his criminal trial that Mr Fuller gave instructions to his accountant for the preparation of nine years of tax returns to be prepared.

  4. Leaving aside evidence of Mr Fuller’s assertions, and the declarations themselves (which are his assertions in written form), there were no supporting documents. Moreover, there is evidence which casts real doubt on Mr Fuller’s assertions. He received Centrelink New Start Payments from 17 December 1999 to 30 June 2000, and then from 1 July 2000 to 15 June 2001. The latter period constitutes almost a full financial year. The receipt of Centrelink payments in the financial year ending 30 June 2001 is inconsistent with his claimed income of $156,000.

  5. The respondent said in evidence that the Centrelink payments had been received by mistake, a mistake somehow connected to his wife, and that the monies were repaid. There was no evidence of any such mistake or repayment. The respondent did not say when the alleged mistake was realised and the monies allegedly repaid.

  6. In all the circumstances, I have come to the conclusion that the respondent probably declared significant amounts in the financial years referred to in order to bolster the claim he intended to make at his trial as to the accumulation of significant legitimate savings.

  7. In determining the respondent’s objection, in respect of which he bears the onus, I am not satisfied on the balance of probabilities that the respondent earned the gross amounts he claimed, or any similar amounts, in the five financial years ended 30 June 2004. I cannot be satisfied on the evidence that the respondent was able to save and accumulate any significant legitimate “cash stash” in those years, as he alleges.

  8. In addition to his claimed receipt of approximately $3,000 per week as a base wage, the respondent said that he used to invest in stock which was then placed in the stock holdings of the Autolink business, to be sold on consignment. He said he would receive a percentage on sale of any stock items purchased by him, being 50 percent of the profits. With reference to Annexure “L” to his affidavit, he claimed that the stock items referred to in the unsold stock report of Autolink contained two significant descriptions, ‘T’ for ‘Tony’, as in Tony Fuller, and ‘R’ for ‘Retail’. He claimed that he received 50 percent on the sale of all of the ‘T’ designated items. When clarification was sought, he explained that ‘R’ referred to retail, a reference to all of the vehicles held by the company for sale on consignment. The company did not itself have any stock which it owned outright. He claimed that all of the vehicles marked ‘T’ were vehicles owned by him.

  9. When the respondent was confronted by Mr Jobson, counsel for the applicant, with the proposition that ‘T’ referred to ‘Trade’, that being standard or usual in the auto industry to designate the status of stock or the source from which stock was acquired, he then changed his earlier evidence. He agreed that capital ‘T’ referred to trade, but said that he owned all the traded stock.

  10. I did not accept the respondent’s evidence in relation to the matters in [41] and [42]. He was caught out in a convenient lie. I considered that most of his evidence was fabricated. On another occasion in giving evidence, he claimed that a number of cash cheques had been provided to him by the company for either wages due to him or part payment of profits earned. However, he did not declare any income in the nature of profits on the sale of vehicles owned by him when he came to instruct his accountant to do his tax returns for the period year ended 30 June 2000 through to year ended 30 June 2004. When he was asked about this, he said that his accountant had told him that he had five years to declare income in the nature of profits, and that he could offset the profits against the substantial losses which he claimed to have incurred. However, even if the accountant’s advice were correct, I note that, from the end of the last of the five financial years (30 June 2004), more than five years had elapsed, and there was no evidence that the respondent had declared the alleged income. The respondent’s accountant was not called to give evidence.

  11. Notwithstanding the applicant’s evidence that Autolink owed him a significant amount of money, the company’s balance sheet showed him as a debtor in the sum of $40,778.48 for one year and subsequently $12,932.00 for another year. The respondent was unable to explain why he should be shown as a debtor, and claimed that he did not owe the company anything. He suggested that the characterisation of monies as loans made to him (and hence debts repayable by him) was simply a way in which the company’s accountant had balanced the books. Mr Fuller’s explanation was not convincing.

  12. There are some further matters which made the respondent’s evidence even less credible. For the financial year ended 30 June 2006, for which Mr Fuller asserted gross income of $62,769.41 in exhibit “TJF1”, he had lodged a return at the time which disclosed gross income of only $15,134. For the 2007 financial year, for which Mr Fuller asserted gross income of $91,084, he had lodged a return at the time which disclosed gross income of $57,134.

  13. For each of the four financial years ended 30 June 2008, 30 June 2009, 30 June 2010 and 30 June 2011, the respondent simply provided his accountant with a handwritten sheet of paper setting out a summary of income allegedly received,[17] as well as a statement of expenses. None of the income or expense amounts was substantiated. No supporting documents were provided.

  14. Mr Fuller has failed to satisfy me that his gross income from the asserted legitimate sources was as set out exhibit “TJF1”. His claims were either unproved or discredited.

  15. The other alleged source of moneys acquired prior to financial year ended 30 June 2004 was the money alleged to have been entrusted by the respondent’s father to Mrs Fuller, the amount of $165,000 referred to and discussed in [21] – [25] above. I do not accept that any such amount was paid by the respondent’s father to Mrs Fuller, for reasons given. In the circumstances, the respondent is not entitled to rely on the matters deposed to by his wife as evidence in his case.

  16. The respondent has failed to credibly explain his unexplained wealth. He was found guilty of commercial dealing in drugs in the indictment period (from 20 June 2007 to 30 March 2011), the same period in which (1) the bank cheques for the house contract were bought with cash (August 2009), (2) the respondent paid the cash purchase price of the boat (March 2009) and (3) the respondent paid trade-in differential for the purchase of the motor vehicle (also March 2009). In my judgment, the respondent has failed to establish the likelihood that the restrained property is not crime-derived.[18]

  17. The objection should be dismissed.

  18. Much of the evidence discussed to this point is relevant also to the applicant’s case. However, before finally deciding, I discuss below evidence of the respondent’s attempts to damage the applicant’s case by discrediting the applicant’s expert forensic accountant.

  19. When proceedings resumed on 30 January 2017, Robert Bruce Wall (referred to in [10] above) gave evidence and was cross-examined. Mr Wall was a certified practising accountant who had been a member of CPA Australia and antecedent bodies since 1984. He held a postgraduate diploma in Applied Finance and Investment awarded by the Securities Industry Institute of Australia. He worked for the Australian Taxation Office for approximately 20 years before commencing employment with the Northern Territory Police in August 2004 as a forensic accountant and financial investigator. In his statutory declaration made 1 March 2012,[19] he identified that, in the period 1 July 2008 to 29 March 2011, the total amount spent by the respondent exceeded funds from identified sources by $847,108.21. The respondent had also received an additional $207,517.61 cash deposits to his bank account. The total of those two amounts is $1,054,625.82. In paragraph 10 of Mr Wall’s affidavit sworn 14 May 2014, he corrected his statutory declaration, substituting the lesser sum of $832,084.22 for $847,108.21, giving an amended total of $1,039,601.83.

  20. The fundamental proposition put by the respondent in his cross-examination of Mr Wall was that the witness dishonestly manipulated the ‘drug unit sold’ tally obtained from the respondent’s notebooks,[20] resulting in the overall tally being raised from 3,865.75g of methamphetamine to 4,881g of methamphetamine, an increase of 1,016 grams, which, at an estimated receipt of $1,000 per gram, resulted in an increase of $1,016,000.00. Mr Fuller extensively cross-examined Mr Wall seeking to have the witness accept the mathematical accuracy of the calculations set out in the many typewritten schedules (Schedule X1 to Schedule X9b) prepared by Mr Fuller. However, Mr Wall did not accept the matters put to him.

  21. The cross-examination of Mr Wall was complicated by the fact that the respondent’s many schedules did not have a legend or index to identify the source of the amounts there shown. Some of the amounts could be linked with Mr Wall’s evidence, including the statutory declaration referred to in [52] above. However, many of the other amounts had been extracted by the respondent from documents he had prepared himself or which were the result of exercises in multiplication, addition or subtraction which Mr Fuller had carried out and in respect of which there was no apparent explanation. Much of the content of the schedules relied on by the respondent for his cross-examination was meaningless. 

  22. The high point in the cross examination of Mr Wall, or low point, depending on one’s point of view, was when the respondent sought to attack Mr Wall’s credibility by suggesting that he had fabricated a figure for “estimated building costs” for the house of $529,100, when in fact the witness had simply adopted the building cost estimate provided by the quantity surveyor. The report of the quantity surveyor (dated 3 February 2012) pre-dated Mr Wall’s statutory declaration by about 3 weeks. It was apparent that Mr Wall was in a position to have adopted the quantity surveyor’s estimated of building costs at the time he, Wall, completed his statutory declaration.

  23. Mr Fuller also sought to establish in cross examination (1) that Mr Wall knew of the quantity surveyor’s estimate of $529,100 some six months before, and that (2) there was a link between the quantity surveyor’s estimate and the decision by the prosecution to charge the supply of an increased quantity of methamphetamine, from 3,865.75 to 4,881 grams. That increase was referred to in the committal proceeding before Ms Oliver SM on 3 October 2011.

  24. There was no evidence to support the respondent’s contention that Mr Wall’s increased count from 3,865.75 grams to 4,881 grams was for any reason other than that the earlier amount stated by him was an incomplete tally and the later amount represented the complete tally of transactions extracted from all five of Mr Fuller’s own notebooks. That was the explanation given by Mr Wall, and I accept it as true. The respondent provided no evidence to the contrary.

  25. It may be noted that Mr Wall first indicated that the total number of units recorded in the respondent’s five notebooks was 4,881, in his statutory declaration made 2 August 2011. In par 24 of that statutory declaration, Mr Wall stated:

    The total number of units as recorded in all five notebooks is 4,881. Given the assumption that the unit selling price is $1,000 as set out in paragraph 9, then the gross sales proceeds or turnover from the enterprise depicted in these notebooks is $4,881,000.

  26. In paragraph 9 of the same statutory declaration, Mr Wall had referred to the fact that his comparison of the units of drugs sold and the corresponding dollar values for each transaction supported a notional unit price of $1,000. 

  27. The respondent also accused Mr Wall of having inserted a “bridging amount”, an amount calculated by Mr Wall and inserted into the schedules in circumstances where he was unable to get the figures to otherwise correlate. In other words, it was suggested, in order to “balance the books”, Mr Wall needed to insert an amount to “bridge” the difference between amounts otherwise shown. Mr Wall denied the accusation. I reject the respondent’s case to that effect. There was no evidence for it.

  28. In my opinion, the respondent’s attacks on Mr Wall’s credit were misconceived, based on what I consider to have been an illogical line of reasoning.

  29. Significantly, the respondent did not seek to give evidence in relation to the notebooks, to explain their contents, to suggest an innocent explanation or to suggest that the entries should not be interpreted in the manner adopted by the prosecution at the criminal trial and by the applicant (and Mr Wall) in this proceeding. A Jones v Dunkel inference[21] is clearly open, which further assists the applicant’s case. 

  30. For the purposes of s 97 CPFA, the applicant has satisfied me that it is more likely than not that the restrained property is crime-derived. In the circumstances, I propose to make a formal order that the restrained property be forfeit to the Territory.

  31. I grant liberty to the applicant to file final orders for settling. I will hear the parties in relation to costs.

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[1]Criminal Property Forfeiture Act, s 41(2), s 43(2).

[2]Criminal Property Forfeiture Act, s 12(1), s 6(a). The term “crime derived” is explained in s 12 Criminal Property Forfeiture Act relevantly as property that is wholly or partly derived, directly or indirectly, from the commission of a forfeiture offence, whether or not any person has been charged with or convicted of the offence. A “forfeiture offence” is defined in s 6(a) of the Act as an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.

[3]Another person, Daniel Clee, lodged an Objection which I ruled had either lapsed through want of prosecution or had been informally discontinued. 

[4]Objection document dated 7 June 2011.

[5]Objection document dated 24 June 2011.

[6]Fuller v The Queen [2013] NTCCA 10, at [1] - [11].

[7]Affidavit of Robert Bruce Wall affirmed 14 May 2014, par 5 and annexures “RBW 2” and “RBW 3”.

[8]Affidavit of Robert Bruce Wall affirmed 9 May 2011, par 16 and annexure “RBW 3”.

[9]Statutory Declaration of Brenton James Wright dated 4 May 2011, with attached ‘Declaration of Sale’ document – annexure “RBW 4” to the affidavit of Robert Bruce Wall affirmed 14 May 2014.

[10]Statutory Declaration of John Delahay dated 2 March 2012; Statutory Declaration of John Delahay dated 8 March 2012 and annexures – annexures “RBW 5” and “RBW 6” to affidavit of Robert Bruce Wall affirmed 14 May 2014.

[11]This amount was subsequently qualified as “approximately $58,400”: affidavit of Tony John Fuller sworn 13 January 2012, par 8.

[12]Affidavit of Tony John Fuller sworn 19 September 2011, pars 24, 20 and 22.

[13]Affidavit Wilaiwan Fuller sworn 13 January 2012, pars 5 - 11.

[14]Affidavit of Tony John Fuller sworn 19 September 2011, par 7.

[15]Affidavit Anastasis Poullas sworn 12 October 2011, par 15.

[16]The pay slips relied on by the respondent were referred to in par 34 and par 35 of his affidavit sworn 13 January 2012 and in Annexure “H” thereto.

[17]See exhibit “TJF2”.

[18]See s 64 (1)(b) CPFA.

[19]Annexure “RBW1” to Mr Wall’s affidavit sworn 14 May 2014, par 13.  

[20]See [9] – [11] above.

[21]Jones v Dunkel (1959) 101 CLR 298 at 312, per Menzies J.

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Cases Citing This Decision

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Fuller v The Queen [2013] NTCCA 10
Luxton v Vines [1952] HCA 19
Jones v Dunkel [1959] HCA 9