Director of Public Prosecutions v Pham

[2011] VSC 549

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 2337 of 2011

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
QUOC DUNG PHAM	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2011
DATE OF JUDGMENT:	12 October 2011
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2011] VSC 549

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CRIMINAL LAW – Confiscations – Civil forfeiture – Substituted service.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Singh	Office of Public Prosecutions
For the Defendant	No appearance

HIS HONOUR:

1. This is an application for civil forfeiture in respect of two motor vehicles owned by Quoc Dung Pham pursuant to the provisions of s 38 of the Confiscation Act1997 (‘the Act’). 

1. On 19 May 2011, Hollingworth J made a restraining order pursuant to s 18(2) of the Act with respect to a series of real estate properties, ten motor vehicles, cash, bank accounts and a significant amount of personal property of a series of individuals suspected of being involved in a large scale cannabis cultivation syndicate. The Court declared that the property was restrained, among other things, for the purpose of satisfying any civil forfeiture order that may be made under pt IV of the Act.

1. The restraining order was made on the basis that the Court was satisfied that there were reasonable grounds to support a police officer's suspicion that the property was tainted property in relation to a schedule 2 offence alleged to have been committed by the members of the syndicate.  Those members included Quoc Dung Pham.  The syndicate as a whole was suspected of trafficking cannabis in large commercial quantities.  That suspicion was deposed to by a member of the Police Force, Marianne Luttick, in an affidavit in support of the application sworn on 13 May 2011. 

1. On 11 July 2011, the Director of Public Prosecutions made an application pursuant to s 37(1) of the Act for civil forfeiture of the property the subject of the restraining order under s 38 of the Act.

1. This application was heard on 31 August 2011, when Warren CJ made forfeiture orders with respect to the property the subject of application which was not then the subject of pending exclusion applications. 

1. On 31 August 2011, the DPP did not seek forfeiture of the property of Quoc Dung Pham because the requisite notice had not at that point been given to him.  The DPP had obtained an order for substituted service against Quoc Dung Pham who was, and it appears still is, at large, for notice to be given to him of the making of the restraining order and the application for civil forfeiture.  The last of these notices was published in a Vietnamese language newspaper in Melbourne on 24 August 2011. 

1. Section 38 of the Act requires that 30 days must elapse between giving notice of a civil forfeiture application and the hearing of the application. As 30 days had not elapsed by the time the civil forfeiture application was heard on 31 August 2011, the DPP did not pursue forfeiture of the property of Quoc Dung Pham at that stage.

1. The 30 day requirement has now been met and the application is now pursued on the basis of two affidavits sworn by Mr Jaswant Singh, a solicitor of the Proceeds of Crime Directorate within the Office of Public Prosecutions. 

1. I am satisfied on the basis of the affidavit material that the forfeiture application has been served on Quoc Dung Pham in accordance with s 37(4) of the Act.

1. I am also satisfied that 30 clear days have elapsed from 24 August 2011, the date on which the last notice of application is deemed to have been served on Quoc Dung Pham, and accordingly the DPP is now entitled to obtain the order sought. 

1. Furthermore, the supplementary affidavit of Mr Singh demonstrates that no application has been made under s 20 of the Act for an exclusion order with respect to the property by Quoc Dung Pham or any other person.

1. In summary, the situation is that Quoc Dung Pham cannot be located, but service has been made upon him in accordance with an order for substituted service and no claim has been made with respect to the property in issue. 

1. I propose to make the order in accordance with the minute submitted to me..

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