Ly v The State of Western Australia
[2015] WADC 132
•13 NOVEMBER 2015
LY -v- THE STATE OF WESTERN AUSTRALIA [2015] WADC 132
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 132 | |
| Case No: | POC:10/2012 | 26 OCTOBER 2015 | |
| Coram: | DERRICK DCJ | 13/11/15 | |
| PERTH | |||
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Objection upheld in part Property confiscated in part | ||
| PDF Version |
| Parties: | THI THANH LY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal property confiscation Objection lodged to property frozen Plaintiff declared a drug trafficker Application by the State for declaration of confiscation Whether property owned or effectively controlled by plaintiff |
Legislation: | Criminal Property Confiscation Act 2000 (WA) Misuse of Drugs Act 1981 (WA) |
Case References: | Barker v The Director of Public Prosecutions (WA) [2011] WASC 299 Campana v The State of Western Australia [2008] WASC 230 Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324 China v Smith (also known as James With) [No 3] [2014] WASC 29 Compass Resources Ltd v Sherman [2010] WASC 41; (2010) 42 WAR 1 McLeod v The State of Western Australia [2015] WASC 48 Smith v The State of Western Australia [2009] WASC 189 Urbano v The State of Western Australia [2006] WASCA 147 Whittle v The State of Western Australia [2012] WASC 244 Willis v The State of Western Australia [No 3] [2010] WASCA 56 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Objection lodged to property frozen - Plaintiff declared a drug trafficker - Application by the State for declaration of confiscation - Whether property owned or effectively controlled by plaintiff
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objection upheld in part
Property confiscated in part
Representation:
Counsel:
Plaintiff : Mr H Sklarz
Defendant : Mr TA Staples
Solicitors:
Plaintiff : Sklarz Lawyers
Defendant : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Barker v The Director of Public Prosecutions (WA) [2011] WASC 299
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324
China v Smith (also known as James With) [No 3] [2014] WASC 29
Compass Resources Ltd v Sherman [2010] WASC 41; (2010) 42 WAR 1
McLeod v The State of Western Australia [2015] WASC 48
Smith v The State of Western Australia [2009] WASC 189
Urbano v The State of Western Australia [2006] WASCA 147
Whittle v The State of Western Australia [2012] WASC 244
Willis v The State of Western Australia [No 3] [2010] WASCA 56
- DERRICK DCJ:
Introduction
1 By chamber summons dated 7 May 2014 the State of Western Australia (the State) makes an application (the confiscation application) pursuant to s 8(1) and s 30 of the Criminal Property Confiscation Act 2000 (WA) (the Act) for the following:
1. An order that the plaintiff's objection to the confiscation of frozen property made by originating summons dated 12 November 2012 and a notice of objection also dated 12 November 2012 be dismissed; and
2. A declaration that the following property that the plaintiff owned or effectively controlled at the time she was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) (the MDA) on 20 December 2013 and all property that she gave away at any time before the drug trafficker declaration was made, has been confiscated to the State of Western Australia:
(1) Cash in the sum of AUD$111,950 taken from Phi Van Tran on 12 September 2012 at 5 Flanders Place, Alexander Heights together with any interest earned thereon;
(2) 2005 Toyota Camry, 1DSO123, VIN 6T153XK360X317931, engine number 1MZ1860884;
(3) 2005 Toyota Camry, 1DJQ914, VIN 6T153BK360X078014, engine number 2AZA234890;
(4) Money standing to the credit of the plaintiff in Bank of Western Australia account number 115-036004-9 as at 20 December 2013, together with any interest earned thereon;
(5) Money standing to the credit of the plaintiff in Commonwealth Bank account number 6120 0063 4216 as at 20 December 2013, together with any interest earned thereon; and
(6) Money standing to the credit of the plaintiff in National Australia Bank account number 82-977-9212 as at 20 December 2013, together with any interest earned thereon.
1. Affidavit of Michelle Aikin sworn on 7 February 2014;
2. Affidavit of Tara Claire Woermann sworn on 1 May 2014;
3. Affidavit of service of Chris Witt sworn on 19 May 2014;
4. Affidavit of service of Chris Witt sworn on 21 May 2014; and
5. Affidavit of Steve Britton sworn on 1 September 2014.
3 The confiscation application is opposed in part by the plaintiff.
Factual background to the confiscation application
The plaintiff's criminal conduct
4 In March 2012 the plaintiff was in a de facto relationship with a Mr Phi Van Tran.
5 During the period leading up to September 2012 the plaintiff and Mr Tran were engaged in a joint illegal enterprise to source methylamphetamine from New South Wales and to transport it to Perth for the purpose of commercial sale. Mr Tran directed the enterprise from Perth. He sent Mr Nghia Le, a 73-year-old Vietnamese man, to Sydney to acquire the methylamphetamine and to bring it to Perth. However, Mr Le encountered difficulties in sourcing the methylamphetamine. Consequently the plaintiff, at the direction of Mr Tran, travelled to Sydney to help Mr Le resolve the difficulties and to obtain the methylamphetamine. The plaintiff was successful in her endeavours.
6 On 11 September 2012 Mr Le travelled from Sydney to Perth with the methylamphetamine that he had acquired with the assistance of the plaintiff and at the direction of Mr Tran. He was apprehended by police at Perth Airport. He was found to be in possession of 495 grams of high purity methylamphetamine. The methylamphetamine was contained in two packets which were secured to his body.
7 On 12 September 2012 the police executed a search warrant at 5 Flanders Place in Alexander Heights. This was where the plaintiff and Mr Tran were living at the time.
8 On executing the search warrant the police found a total of approximately 216 grams of methylamphetamine and 485 grams of heroin. The individual quantities of methylamphetamine and heroin making up these total amounts were found in various locations at the premises.
9 During the execution of the search warrant the police also found $111,950 in cash. The cash was found in a safe. The safe was owned by the plaintiff. The plaintiff was the person who held the combination number to the safe.
10 On 16 October 2012 the plaintiff was charged by the police with one offence of conspiring with Mr Tran and Mr Le to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
The freezing notices and the plaintiff's objections
11 On the same date that the plaintiff was charged (presumably before the charge was actually laid) the police made an application to a Justice of the Peace pursuant to s 34(1) of the Act for the issue of a freezing notice number WAPFN120215 (the first freezing notice). The application for the first freezing notice was made on the following grounds:
1. There were reasonable grounds for suspecting that the property specified in the freezing notice was 'crime-used' or 'crime-derived': the Act, s 34(2); and
2. The plaintiff was likely to be charged with an offence within 21 days of the freezing notice being issued and could be declared a drug trafficker under s 32A(1) of the MDA if she was convicted of the offence: the Act, s 34(3).
12 The property specified in the first freezing notice included all the property the subject of the confiscation application, save for the money standing to the credit of the Commonwealth Bank account number 6120 0063 4216 and the money standing to the credit of the National Australia Bank account number 82-977-9212.
13 With respect to the $111,950 in cash found in the plaintiff's safe, the amount actually specified in the first freezing notice was $112,400. This was due to the police who seized the funds incorrectly advising the Proceeds of Crime Squad that the amount found in the safe was $112,400. When the money was banked it was discovered that the amount actually seized was $111,950.
14 The application for the first freezing notice was granted. The first freezing notice was issued and served on the plaintiff and a number of other persons in accordance with s 36 of the Act.
15 On 18 October 2012 the plaintiff provided, pursuant to s 37 of the Act, a statutory declaration in which she stated that she objected to the first freezing notice. In her statutory declaration the plaintiff also stated that there were a number of persons who had a legal and equitable interest in the property listed in the first freezing notice. She identified these persons and the property the subject of the first freezing notice which she asserted the persons had an interest in.
16 Following the issuing of the first freezing notice a number of other persons who had been served with the notice provided statutory declarations pursuant to s 37 of the Act.
17 On 12 November 2012 the plaintiff filed, pursuant to s 79 of the Act, an originating summons in which she stated her objection to the confiscation of the property the subject of the first freezing notice and sought orders as follows:
1. The plaintiff be appointed to control and manage the motor vehicles referred to in items 4 and 5 of Schedule 2 of the first freezing notice, namely the 2005 Toyota Camry registration number 1DSO123 and the 2005 Toyota Camry registration number 1DJQ914;
2. The amount of $112,400 referred to in item 3 of Schedule 2 of the first freezing notice be released to the following persons and the plaintiff:
(1) Nguyen V Cu also known as Ut Thang, the sum of $30,000;
(2) Mrs Ut, the wife of Ut Thang, the sum of $20,000;
(3) Mr Dinh Phu Lam, the sum of $20,000;
(4) Huyen Thao Linh Tran, the sum of $15,000; and
(5) The plaintiff, the balance sum of $27,400.
3. The amount of $27,400 be released to the plaintiff to allow her to pay her legal costs.
18 The plaintiff filed in support of the originating summons an affidavit sworn by her on 12 November 2012. In pars 4 to 17 of her affidavit the plaintiff said the following:
4. Nguyen V. Cu also known as Ut Thang, lent me the sum of $30,000.00, for the purpose of purchasing a house. The loan agreement states that, if the loan is not repaid within one year, then I am liable to repay the sum of $300.00 interest per month thereafter, in addition to the principal sum.
5. Annexed hereto and marked with the letters 'TTL1A' is a copy of this loan agreement which has been handwritten in the Vietnamese language and annexed hereto and marked with the letters 'TTL1B' is a copy of the certified translation to the English language.
6. By a separate loan agreement, Mrs Ut, the wife of Ut Thang, lent me $20,000.00 towards the purchase of the house for a period of one year, on the condition that if the principal remained unpaid, upon expiration of that period, $20.00 interest per month would be charged, until the whole principal was repaid.
7. Annexed hereto and marked with the letters 'TTL2A' is a copy of this loan agreement which has been handwritten in the Vietnamese language and annexed hereto and marked with the letters 'TTL2B' is a copy of the translation to the English language.
8. On 30 May 2011, Mr. Dinh Phu Lam also lent me $20,000.000 to assist me and my family in purchasing a home. A loan agreement was prepared stating that the repayment date for that loan was within two years, namely 30 May 2013. There was an interest component of $50.00 per month.
9. Annexed hereto and marked with the letters 'TTL3A' is a copy of this loan agreement which has been handwritten in the Vietnamese language and annexed hereto and marked with the letters 'TTL3B' is a copy of the translation to the English language.
10. I also received $15,000.00 from Huyen Thao Linh Tran, for the purpose of purchasing a diamond ring for her, which funds I kept in the safe for that sole purpose. I have requested Ms. Tran to provide me with written confirmation, however, at the time of swearing this affidavit she has not done so, due to her pressure of work but has advised that she will do so in the foreseeable future.
11. On 5 March 2012, my daughter Thuy Duong and I entered a Mutual Pooled Fund which is commonly known as a Vietnamese Community Hui fund. There were 18 participants of which my daughter was registered as one (No. 11) and I helped her make her monthly contributions on behalf of both of us and our families. The 18 participants contributed $2,000.00 per month towards that fund. The fund closed on 5 August 2012 and my daughter and I received from it the sum of $36,000.00. The receipt was made out in favour of my daughter and I kept these cash funds in my safe.
12. Annexed hereto and marked with the letters 'TTL4A' is a copy of Mutual Pooled Fund Statement which has been typed in the Vietnamese language and annexed hereto and marked with the letters 'TTL4B' is a copy of the translation to the English language.
13. Also annexed hereto and marked with the letters 'TTL5A' is a copy of Statement/Receipt dated 5 August 2012 which has been handwritten in the Vietnamese language and annexed hereto and marked with the letters 'TTL5B' is a copy of the translation to the English language.
14. The total of funds that I received and kept in the home safe, as stated above, was $121,000.00, however, over the past months, I, with my daughter's authority, have paid for family household and living expenses and also purchased some jewelry [sic] with my said daughter, which depleted the funds of $36,000.00 (clause 11 above) down to $27,400 being the remaining sum found by the police in the safe, of the total of $112,400.00.
15. The two motor vehicles referred to in Items 4 and 5 of Schedule 2 of the aforesaid Freezing Notice were purchased legitimately by me at separate Auctions, namely, the 2005 Toyota Camry 1DSO123, which I value at approximately $5,000.00 and the other 2005 Toyota Camry 1DJQ914, which I also value at approximately $5,000.00. These vehicles are being used by me and my family and I seek an Order to allow me to control and manage the said vehicles for the duration of these proceedings.
16. I seek Orders that I be authorized to have the aforesaid funds released to the respective persons who have entitlement as stated by me.
17. I also require the release of the balance of $27,400.00 to me, referred to in clause 11 above, to pay towards my legal fees.
19 Also on 12 November 2012 the plaintiff filed, pursuant to s 79 of the Act, a notice of objection by which she objected to the first freezing notice and to the confiscation of the property particularised in the notice.
20 On 13 November 2012 the police made an application, again pursuant to s 34(1) of the Act, for the issue of a second freezing notice number WAPFN120229 (the second freezing notice). The application was made on the ground that the plaintiff had been charged with an offence and could be declared a drug trafficker under s 32A(1) of the MDA if she was convicted of the offence: the Act, s 34(3). The property specified in the second freezing notice consisted of the money standing to the credit of the plaintiff in Commonwealth Bank account number 6120 0063 4216 and in National Australia Bank account number 82-977-9212.
21 The application for the second freezing notice was granted. In accordance with s 36 of the Act the second freezing notice was served on the plaintiff and officers from the two banks at which the relevant accounts were held.
22 On 12 December 2012 the court made orders by consent that the plaintiff's originating summons stand as an objection to the second freezing notice in addition to the first freezing notice. The court also ordered, again by consent, that the plaintiff be appointed to control and manage the two Toyota Camry motor vehicles the subject of the first freezing notice.
The plaintiff's convictions and sentencing
23 On 11 November 2013 the plaintiff stood trial on an indictment charging her with two offences of possessing a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another and one offence of possessing a prohibited drug, namely heroin, with intent to sell or supply it to another. The prosecution of the plaintiff for the conspiracy charge had been discontinued by the State on the filing of the indictment. The first of the possess methylamphetamine with intent charges related to the quantity of methylamphetamine found in the possession of Mr Le. The second of the possess methylamphetamine with intent charges related to the methylamphetamine found at the house in Alexander Heights. The possess heroin with intent charge related to the heroin that was found at the house.
24 The plaintiff was to stand trial jointly with Mr Tran. However, on the first morning of the trial Mr Tran pleaded guilty to the three charges laid against him, which corresponded to the three charges laid against the plaintiff.
25 On 21 November 2013 the plaintiff was found guilty by the jury of the three offences with which she had been charged.
26 On 20 December 2013 the plaintiff was sentenced for her offences to a total of 13 years' imprisonment. In sentencing the plaintiff the sentencing judge said the following (ts 704 – 705):
You purported to give an innocent explanation for your being in possession of $112,400 cash which the prosecution contended was the proceeds of drug dealing.
You said that you had borrowed amounts of $20,000 and $30,000 in cash in 2010 and 2011 for the purpose of putting a deposit on a residential property. You gave no evidence of choosing a property at any time. I do not accept that the cash in your possession included $50,000 which you borrowed for a deposit.
Your explanation of your possession of that money made no sense. You also gave evidence and were supported by the evidence of others, to some extent, that you received an amount of $36,000 in cash being the proceeds of a Hui fund distribution to which your daughter was entitled. That amount represents a relatively small proportion of the total amount of cash found in your safe.
Although I have grave reservations about the truthfulness of your evidence and that of your witnesses in relation to this amount of money, it is not necessary that I decide, as a fact relevant to sentencing, that the sum of $36,000 was not legitimately held. That issue may well be decided elsewhere. Otherwise, I find the rest of the cash found in your possession was probably related to drug dealing.
27 Pursuant to s 32A(1) of the MDA the sentencing judge declared the plaintiff to be a drug trafficker.
The filing of the confiscation application
28 It is against the above factual background that on 8 May 2014 the State filed the confiscation application.
Provisions relevant to the determination of the confiscation application
29 Section 8(1) of the Act provides that when a person is declared to be a drug trafficker under s 32A(1) of the MDA as a result of being convicted of a confiscation offence committed after the commencement of the Act, the following property is confiscated:
(a) all the property that the person owns or effectively controls at the time the declaration is made; and
(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 the Act.
30 All three of the offences of which the plaintiff has been convicted are confiscation offences: the Act, s 114. The plaintiff committed the offences after the commencement date of the Act. It follows that if the property the subject of the two freezing notices was owned or effectively controlled by the plaintiff at the time that the drug trafficker declaration was made against her, the property was, by virtue of s 8(1), automatically and immediately confiscated: Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324 [199].
31 Section 156 of the Act defines the phrase 'effective control of property' for the purposes of the Act. The section provides as follows:
156. Term used: effective control (in relation to property)
(1) For the purposes of this 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, or is held for the ultimate benefit of the person.
(2) Without limiting subsection (1), when determining whether a person has effective control of any property, the following matters may be taken into account —
(a) any shareholdings in, debentures over or directorships of any corporation that has a direct or indirect interest in the property;
(b) any trust that has a relationship to the property;
(c) family, domestic and business relationships between persons having an interest in the property;
(d) family, domestic and business relationships between persons having an interest in or in a corporation that has a direct or indirect interest in the property;
(e) family, domestic and business relationships between persons having an interest in a trust that has a relationship to the property;
(f) any other relevant matters.
(a) real or personal property of any description, wherever situated, whether tangible or intangible; or
(b) a legal or equitable interest in any property referred to in paragraph (a).
33 Section 30(1) of the Act provides that the Director of Public Prosecutions for Western Australia may apply to the court for a declaration that property has been confiscated. Section 30(2) of the Act provides that if a court finds that the property described in the application for the declaration has been confiscated under s 8, the court must make a declaration to that effect.
34 In their written submissions filed prior to the hearing of the confiscation application both the State and the plaintiff proceeded on the basis that the section which governed my determination of the application was s 84(2) of the Act with the consequence that the question for me was whether the plaintiff had proved that it was more probable than not that she did not own or effectively control the property the subject of her objection. Section 84(2) provides as follows:
The court may set aside a freezing notice issued for property under s 34(3) or a freezing order for property that was frozen under s 43(5) if the court finds that it is more likely than not that the person who is or will be charged with the offence does not own or effectively control the property, and has not at any time given it away.
35 During the hearing I expressed to counsel my preliminary view that s 84(2) was not relevant to the determination of the confiscation application because the section by its wording applied only in the situation where the freezing notice had been issued under s 34(3) or s 43(5) but the property had not yet been automatically confiscated by reason of the operation of s 8(1). I suggested to counsel that once property had been confiscated by virtue of s 8(1), s 84(2) in effect fell away. I suggested that it followed that the question for me in determining the confiscation application was whether I was satisfied on the balance of probabilities (the Act, s 102(2)(d)) that the property specified in the two freezing notices the subject of the plaintiff's objection was, as at the date that the plaintiff was declared a drug trafficker, owned or effectively controlled by her because it was only the property that was owned or effectively controlled by her at the time that she was declared a drug trafficker that was automatically confiscated on the making of that declaration.
36 I think it is fair to say that I did not, on expressing my above stated preliminary view to counsel, receive from counsel the benefit of any substantive submission as to the correctness or otherwise of my suggested interpretation of the relevant sections of the Act. This was no doubt due largely to the fact that neither counsel had turned their mind to the issue prior to the hearing. It was also probably due in part to the fact that the construction point impacted only on the issue of which party bore the burden of proving that the relevant property was, or was not, owned or effectively controlled by the plaintiff as at the date of the drug trafficker declaration.
37 I have had the opportunity to further research and consider the issue since the hearing of the confiscation application. My research has revealed that the issue is (perhaps not surprisingly) one that has received previous consideration. Thus in Campana v The State of Western Australia [2008] WASC 230 [38] – [41] Jenkins J after referring to ss 8, 30 and 79 of the Act as well as the definitions of 'effective control', 'owner' and 'property' contained in the Act, said the following:
If a party wished to obtain the release of frozen property prior to the making of a declaration that a person was a drug trafficker, they would seek a hearing of their objection prior to the determination of the relevant criminal proceedings. That did not occur in this case, presumably because the plaintiffs were content to wait until both their objections and the defendants' application for declarations under s 30 could be heard together. The defendant acquiesced to the joint hearing. In Director of Public Prosecutions (WA) v Centurion Trust Company Ltd (No 5) [2008] WASC 107, Templeman J pointed out that the Act provided that once property had been confiscated it was no longer frozen property. A court cannot order that a freezing notice be set aside or frozen property be released once property the subject of the freezing notice has been confiscated.
The practical way for me to address the issues at this stage is to consider whether, absent the freezing notice, the property in the table [specified in the freezing notice] was owned or effectively controlled by the first plaintiff at the time the first plaintiff was declared to be a drug trafficker on 20 October 2006 or whether the items were property that the first plaintiff had given away at any time prior to the declaration being made. If the frozen property does not meet these criteria, the freezing notice in respect to the property ought to be set aside and the defendants' application for a declaration in respect to it ought to be dismissed. If, on the other hand, the property meets one of the criteria in s 8(1), I should dismiss the plaintiffs' objection and make the appropriate declaration under s 30.
In deciding to proceed in this manner, I have not overlooked the fact that s 8 and s 84 are not in identical terms. However, given that the real question in these proceedings is whether the property has been confiscated pursuant to s 8, I should regard that section and s 30 as governing my decision in the matter. The onus is on the defendant to establish that a particular item of property has been confiscated.
The Act s 102 provides that these proceedings are taken to be civil proceedings for all purposes and a question of fact to be decided in them is to be decided on the balance of probabilities.
38 In my respectful view the above cited statements of Jenkins J and the approach that her Honour took, which of course I must follow, are broadly consistent with the views that I expressed to counsel on a preliminary basis during the hearing of the confiscation application. Section 84(2) is concerned with the situation where the freezing notice has been issued under s 34(3), that is, on the basis that the person to whom the notice has been issued has been or will be charged (as opposed to convicted of) the offence which could result in him or her being declared a drug trafficker. Once the person is convicted of the offence and is declared a drug trafficker with the result that property the subject of a freezing notice owned or effectively controlled by him or her is confiscated under s 8(1) of the Act, s 84(2) has no further role to play. The freezing notice stops being in force when there is a confiscation of property under s 8(1): Urbano v The State of Western Australia [2006] WASCA 147 [34]; Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [172] – [181], [194] – [203]. Accordingly, the question for me, consistently with the approach taken by Jenkins J in Campana v The State of Western Australia, in determining the confiscation application and the plaintiff's opposition thereto, is whether I am satisfied on the balance of probabilities that the property which the plaintiff objects to being confiscated was owned or effectively controlled by the plaintiff at the time that she was declared to be a drug trafficker.
The hearing of the confiscation application and the parties' submissions
39 The hearing of the confiscation application proceeded on the basis of the affidavit evidence before the court. The affidavit evidence consisted of the previously referred to five affidavits filed by the State in support of the confiscation application. The affidavit evidence also consisted of the plaintiff's affidavit sworn on 12 November 2012.
40 The State did not seek to cross-examine the plaintiff on her affidavit. The plaintiff did not seek to cross-examine any of the persons who had sworn the affidavits relied upon by the State.
41 At the hearing the plaintiff did not press her objection to the confiscation of the three amounts of $30,000, $20,000 and $20,000 which on her version of events were loaned to her by Mr Ut Thang, Mrs Ut and Mr Dinh Lam respectively. She conceded that these individual amounts, which on her version were loaned to her on an unsecured basis, were owned by her at the time that the drug trafficker declaration was made against her and had consequently been automatically confiscated by virtue of s 8(1) of the Act. In my view the plaintiff's concession was, in light of the above cited pars 4 to 9 of her affidavit, without doubt correctly made: see generally Compass Resources Ltd v Sherman [2010] WASC 41; (2010) 42 WAR 1 [57] – [71].
42 At the hearing the plaintiff also did not press her objection to the confiscation of the two Toyota Camry motor vehicles or the money standing to her credit in the three bank accounts. She conceded that she owned the motor vehicles and the funds in the bank accounts at the time that the drug trafficker declaration was made against her and that consequently the vehicles and the funds had been automatically confiscated by reason of s 8(1) of the Act. Again, in my view the plaintiff's concessions in this regard were, in light of the affidavit evidence before the court, correctly made.
43 The objection that the plaintiff did maintain at the hearing related to the balance of the $111,950 found in the safe, namely $41,950 ($111,950 less the total of $70,000 loaned by Mr and Mrs Ut and Mr Lam). In respect of this amount of $41,950 (the balance amount) the plaintiff's submissions, made in reliance on the affidavit evidence before the court, were in substance as follows.
44 First, $15,000 of the balance amount was given to the plaintiff by Ms Huyen Tran for the sole purpose of enabling the plaintiff to buy a diamond ring or a diamond or diamonds for Ms Tran. The plaintiff therefore held these funds on trust for Ms Tran. Accordingly, the plaintiff did not own or effectively control the $15,000 as at the date that she received the funds or as at the date that she was declared a drug trafficker. Consequently, the amount of $15,000 was not automatically confiscated by reason of s 8(1).
45 Second, the remainder of the balance amount, namely $26,950 (referred to in the plaintiff's affidavit as an amount of $27,400 as a result of the police originally reporting that they had seized a total of $112,400 in cash from the safe) was the amount left from the pay out from the Vietnamese community Hui fund. The plaintiff was holding this amount for and on behalf of her daughter. The money was not the plaintiff's money. Accordingly, the plaintiff did not own or effectively control the $26,950 as at the date that she received the funds or as at the date that she was declared a drug trafficker. Consequently, the amount of $26,950 was not automatically confiscated by reason of s 8(1).
46 The State for its part did not concede that I should be satisfied on the evidence before me that the amount of $15,000 was paid to the plaintiff for the sole purpose of enabling her to buy a diamond ring or a diamond or diamonds for Ms Tran, or that the amount of $26,950 was the amount that was left from the pay out from the Hui fund. In this context the State pointed to the nature of the offences that the plaintiff had been convicted of and the fact that she was clearly engaged in drug dealing at the time of the seizure of the cash. Further, the State contended that even if I did ultimately conclude that I am satisfied on the basis of the available evidence of the truthfulness of the plaintiff's factual assertions in relation to the two amounts comprising the balance amount, I should still find that these amounts were owned, or at least effectively controlled, by the plaintiff on the date that she was declared a drug trafficker with the consequence that they were automatically confiscated on that date under s 8(1).
Analysis and decision
47 I will deal with each of the two amounts of money the subject of the plaintiff's objection in turn.
The $15,000 payment
48 In order to deal with the plaintiff's objection to the confiscation of the $15,000 allegedly paid to her for the purchase of a diamond ring or a diamond or diamonds I need to address three questions:
1. Did Ms Tran pay the $15,000 to the plaintiff for the sole purpose of enabling the plaintiff to buy a diamond ring or a diamond or diamonds for Ms Tran?
2. If Ms Tran did pay the $15,000 to the plaintiff for the sole purpose of enabling the plaintiff to buy a diamond ring or a diamond or diamonds for Ms Tran, did the plaintiff hold the amount on trust for Ms Tran?
3. If the plaintiff did hold the $15,000 on trust for Ms Tran, does this mean that the plaintiff did not own or effectively control the funds at the time that the drug trafficker declaration was made against her?
49 I will deal with each of these questions in turn.
Did Ms Tran pay the $15,000 to the plaintiff for the sole purpose of enabling the plaintiff to buy a diamond ring or a diamond or diamonds for her?
50 The plaintiff's allegation that she received the $15,000 from Ms Tran for the sole purpose of buying a diamond ring or a diamond or diamonds for Ms Tran is based on the above cited par 10 of her affidavit.
51 In par 10 of her affidavit the plaintiff states that she has asked Ms Tran for written confirmation of the deposed to arrangement but that as at the time of swearing her affidavit Ms Tran has not provided the confirmation 'due to her pressure of work but has advised that she will do so in the foreseeable future'.
52 Ms Tran did ultimately provide confirmation of the arrangement which the plaintiff deposes to in par 10 of her affidavit. Ms Tran did this by providing, on 10 May 2013, a signed statement to the police (not a statutory declaration as stated by both counsel during the hearing of the confiscation application). The statement, which is annexed to the affidavit of Ms Woermann, is in the following terms:
Lanh Thao Huynh TRAN
STATES
I am 38 years old and I live at an address known to Police.
Back in about June 2012 I decided to purchase some diamonds to spoil myself.
I heard through the Vietnamese community, which is close-knit, that a lady by the name of Thanh was able to get good quality certified diamonds.
Thanh's full name is Thanh Thi Ly and she lived in Alexander Heights.
I think I might have first met her at Girrawheen shops, the Newpark Shopping Centre, where the Vietnamese community hangs out.
At some time in July or August 2012 I met Thanh at Girrawheen shops where she showed me a valuation certificate for diamonds.
That made me confident she could get me the diamonds.
I own a business called 'The Lunch Club' at 136 Oats Street, Carlisle.
I have owned it for nearly two years now. I bought it in September 2011 or similar.
Since that time I have been putting money aside in cash.
I had saved about $15,000 in cash.
I decided to give this money to Thanh to buy diamonds.
I was hoping to buy one really good quality diamond with the money.
It was in July or August 2012 I gave $15,000 to Thanh for the diamond.
She did not give me a receipt.
Thanh said she would let me know as soon as she could get it. She has my number.
I gave her mainly $50 and $100 notes.
We had no written agreement in place about how it would take (sic) but I assumed it might (sic) two months or so.
I haven't heard from Thanh since then. I have seen her around Girrawheen shops.
On one occasion I told her I wanted my money back.
I had heard that her friend was involved in drugs.
I think it was about October 2012 I told her wanted the money back.
Thanh told me there was nothing she could do about it at the moment.
When I gave Thanh the cash it was at her house in Alexander Heights. I don't remember the street name. There was no-one else there but us.
Thanh took the cash in her room. I didn't see what she did with it.
This statement is true to the best of my knowledge and belief. I have made this statement knowing that, if it is tendered in evidence, I will be guilty of a crime if I have wilfully included in the statement anything that I know to be false or that I do not believe is true.
53 In short, save that Ms Tran refers to asking the plaintiff to buy a diamond or diamonds for her as opposed to a diamond ring, Ms Tran in her statement substantially corroborates the evidence of the plaintiff as set out in par 10 of her affidavit.
54 In light of the uncontradicted affidavit evidence of the plaintiff and the contents of the statement made to the police by Ms Tran, I am satisfied on the balance of probabilities and therefore find that Ms Tran did, in or around July or August 2012, give to the plaintiff the sum of $15,000 in cash for the sole purpose of enabling the plaintiff to purchase for Ms Tran a diamond ring, or a diamond, or diamonds. I am also satisfied on the balance of probabilities and find that this amount was handed over by Ms Tran to the plaintiff at the plaintiff's house situated at 5 Flanders Place in Alexander Heights, and that the plaintiff placed this sum of money in her safe.
Did the plaintiff hold the $15,000 on trust for Ms Tran?
55 Both parties agree that the legal principles that are applicable to the determination of the question whether the plaintiff held the $15,000 paid to her by Ms Tran on trust for Ms Tran are those stated by Beech J in Compass Resources Ltd v Sherman. The principles as stated by Beech J are as follows:
1. Generally, in commercial transactions, when A advances money to B, the relationship between A and B is one of debtor and creditor. However, the circumstances may give rise to obligations of trust or of a fiduciary character. Relationships of trust and debt can co-exist [57];
2. Whether an obligation of trust is created depends upon the mutual intention of A and B [58];
3. A trust is created when A pays money to B as a loan only if the mutual intention is that the money paid not become part of the assets of B but should be used exclusively for a specific purpose [60] – [62];
4. The test of the necessary intention is whether it is intended that the monies not become part of the general assets of the person and be used only for the particular purpose. It is not sufficient, in order to establish a trust, to show that the parties intended that the monies be used only for a particular purpose. Not every contractual obligation to use loan funds for a specified purpose gives rise to a trust of the monies lent [67];
5. In determining the question of intention the court will have regard to the language employed by the parties, including in the particular clause in question, the nature of the transaction, and the circumstances surrounding the relationship [69];
6. Whether there is expressed a requirement that the funds be kept separate from other monies of the borrower is a significant consideration in determining the question of intention [70]; and
7. The search is for an intention (or not) that monies paid to the borrower not become part of the borrower's assets. Accordingly, an intention (or not) that the funds be kept separate and not mixed with the borrower's general funds is of considerable significance [71].
56 The above statements of principle made by Beech J were endorsed by Kenneth Martin J in China v Smith (also known as James With) [No 3] [2014] WASC 29[69] - [75].
57 Compass Resources v Sherman, unlike the present factual situation, concerned an advance of loan funds. However, I accept, as advocated by the parties, and as is reflected by the decision in China v Smith, that the statements of principle made by Beech J are applicable to determining whether the arrangement made between the plaintiff and Ms Tran gave rise to a trust over the $15,000.
58 I have found that Ms Tran paid the $15,000 to the plaintiff for a specific purpose, namely to enable the plaintiff to purchase for Ms Tran a diamond ring, a diamond or diamonds. However, and as is apparent from my above references to the statements of principle made by Beech J, the mere fact that Ms Tran paid the $15,000 to the plaintiff to be used for a specific purpose is not of itself sufficient to give rise to a relationship of trust. There is an additional requirement, namely that the mutual intention of Ms Tran and the plaintiff was that the money not become part of the general assets of the plaintiff.
59 There was no written agreement entered into between Ms Tran and the plaintiff in relation to the $15,000 payment. It is therefore necessary for me to determine what the relevant mutual intention was by reference to the nature of the transaction and the circumstances surrounding the relationship between Ms Tran and the plaintiff.
60 There is no suggestion on the evidence before me that Ms Tran expressly stipulated to the plaintiff that the $15,000 that she was handing over to the plaintiff had to be kept separate from other funds belonging to the plaintiff. Nor is there any suggestion on the evidence that the plaintiff, once she had taken the funds and put them in her safe, attempted to keep them in any way separate from the other money that was in her safe. To the contrary, both parties agree that although the total $111,950 found in the safe was not all in one bundle of cash but was made up of a number of bundles, the $15,000 provided by Ms Tran to the plaintiff did not comprise a bundle on its own. It was intermingled with all the other cash. The fact that Ms Tran did not expressly stipulate to the plaintiff that the $15,000 was to be kept separate from the plaintiff's other funds, and the fact that the plaintiff did not keep the funds separate are, as is apparent from Beech J's statements in Compass Resources v Sherman, factors of significance. They are factors which, on the face of it, support the conclusion contended for by the State, namely that the funds, once handed over, became part of the plaintiff's assets and were not held by the plaintiff on trust for Ms Tran.
61 Against the existence of the above factors, however, one must look at the nature of the transaction and the circumstances of the relationship that existed between the plaintiff and Ms Tran.
62 As to the circumstances of the relationship between the plaintiff and Ms Tran, this is not a case in which the parties to the transaction were sophisticated commercial operators. Rather, the parties to the transaction were two women who were acquainted with each other and each other's background by reason of their mutual membership of the Vietnamese community.
63 With respect to the nature of the transaction, it could hardly have been less formal. The complete lack of formality is, of course, entirely consistent with the nature of the relationship that existed between the plaintiff and Ms Tran. Further, the transaction did not constitute a loan in the sense that the term 'loan' is ordinarily used. The arrangement (unlike, for example, the alleged arrangements involving Mr Ut, Mrs Ut and Mr Lam in respect of which the plaintiff has abandoned her objection) was not for the plaintiff to use the sum of $15,000 for a purpose associated with the plaintiff and then to pay back to Ms Tran the sum of $15,000 with or without interest at a later point in time. Rather, the arrangement was for the plaintiff to use the money given to her by Ms Tran for a very specific purpose which was to the benefit of Ms Tran. Indeed, on the available evidence it does not appear that the plaintiff was to derive any benefit from the transaction at all. The arrangement, as revealed by the evidence, bears the hallmarks of one person agreeing to perform a favour for another.
64 Given the circumstances of the relationship that existed between the plaintiff and Ms Tran and the nature of the arrangement that they entered into, I am satisfied on the balance of probabilities that the mutual intention of the plaintiff and Ms Tran was that the $15,000 was not to become part of the general assets of the plaintiff, and that if the plaintiff was for some reason unable to buy the diamond ring or diamond or diamonds for Ms Tran she was to give the $15,000 back to Ms Tran. In my view the relationship that existed between the plaintiff and Ms Tran and the nature of the arrangement that they entered into compels the conclusion that the mutual intention of the plaintiff and Ms Tran was for the $15,000 not to become part of the general assets of the plaintiff despite the failure by Ms Tran to expressly stipulate that her $15,000 be kept separate from the plaintiff's funds and despite the plaintiff's failure to keep the $15,000 in a separate bundle in her safe. I simply do not accept that either Ms Tran or the plaintiff, at the time that the $15,000 was handed over, even contemplated that the funds would become part of the assets of the plaintiff. It follows that I am satisfied on the balance of probabilities that the plaintiff, on receipt of the $15,000 from Ms Tran, held those funds on trust for Ms Tran pending the purchase by her for Ms Tran of a diamond ring, diamond or diamonds.
Did the plaintiff own or effectively control the $15,000 at the time that she was declared a drug trafficker?
65 I have already referred to the definitions of the terms 'owned' and 'property' which are contained in the Glossary to the Act. Given these definitions it seems to me that it might be arguable that a person who has only a legal interest in an item of personal property owns that item of property within the meaning of s 8(1) with the result that the property is automatically confiscated under s 8(1) at the time that the person is declared a drug trafficker despite the existence of another person's beneficial interest in the property. The possibility of such an argument being mounted has been adverted to, even if only indirectly: Willis v The State of Western Australia [No 3] [2010] WASCA 56 [1]. However, the issue is not one that I need to consider further. I say this because it has been accepted in a number of authorities binding upon me that if an innocent person has an equitable interest in 'property' as defined in the Act, and the interest is sufficient to satisfy the definition of 'owner' under the Act, then that equitable interest is not subject to confiscation. Only the interest of the drug trafficker is confiscated: Smith v The State of Western Australia [2009] WASC 189 [10]; Barker v The Director of Public Prosecutions (WA) [2011] WASC 299; Whittle v The State of Western Australia [2012] WASC 244 [40].
66 The plaintiff, as trustee of the $15,000, had a legal interest in this sum. However, the beneficial or equitable interest in the sum was owned by Ms Tran. Ms Tran's equitable interest in the money was not subject to confiscation. To put it another way, given that the beneficial interest in the $15,000 was held by Ms Tran that sum, as opposed to the legal interest in the sum held by the plaintiff, was not automatically confiscated under s 8 at the time that the plaintiff was declared a drug trafficker.
67 I note that it cannot be said that the plaintiff effectively controlled the $15,000 at the time that she was declared a drug trafficker. As I have already pointed out, s 156(1) of the Act provides that for the purposes of the 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 or is held for the ultimate benefit of the person. The plaintiff as trustee of the $15,000 had the legal estate in the property and therefore was not, by definition, in effective control of the property.
68 During the course of the hearing of the confiscation application counsel for the State submitted that the scheme of the Act is such that 'to be entitled to relief under the Act, you have to be an objector and a party to the proceedings'. Counsel submitted that if a person is not a party the person is not an objector and therefore not entitled to the setting aside of the freezing notice. In other words, the effect of counsel's submission was that regardless of the conclusion I arrived at in relation to the extent of the plaintiff's interest in the $15,000, I could not find that the sum was not automatically confiscated under s 8(1) because Ms Tran had not, despite having provided a statement to the police, filed an objection to the confiscation of the sum under s 79 of the Act. Counsel did not develop his submission to any great extent by reference to the relevant statutory provisions. Nor did he refer me to any authority which provided support for his submission.
69 Section 79(1) of the Act provides that 'a person may file an objection to the confiscation of frozen property'. In this case the plaintiff is the person who has filed the objection.
70 Section 81(1) of the Act provides, so far as is relevant, that on hearing an objection to the confiscation of frozen property, the court may set aside the freezing notice to the extent permitted under s 84 (my emphasis).
71 Section 84(2), as has already been pointed out, provides, so far as is relevant, that the court may set aside a freezing notice issued for property under s 34(3) if the court finds that it is more likely than not that the person who is or will be charged with the offence does not own or effectively control the property, and has not at any time given it away.
72 In my view there is nothing in the wording of the sections to which I have just referred which supports the conclusion that the court, on hearing an objection to the confiscation of frozen property, can only set aside the freezing notice under s 84(2) if to do so will provide relief to the objector as opposed to some other third party. It is the filing of the objection to the confiscation of the frozen property that enlivens the court's jurisdiction under s 84(2). The jurisdiction is not, in my view, limited by the identity of the objector.
73 In summary, I do not accept that the fact that Ms Tran did not herself file an objection under s 79(1) of the Act precludes me from finding that the $15,000 that she paid to the plaintiff and which was held on trust for her by the plaintiff was not automatically confiscated under s 8(1).
74 For the reasons I have stated, I would uphold the plaintiff's objection and set aside the first freezing notice to the extent that the objection and the first freezing notice applies to $15,000 of the balance amount. I would also dismiss the State's application for a declaration in respect of this portion of the balance amount.
The $26,950 payment
75 I turn to the amount of $26,950 which on the plaintiff's version of events is the balance of the payout from the Hui Fund. In order to deal with the plaintiff's objection to the confiscation of this amount I need to address two questions:
1. Is the amount of $26,950 the balance of the payout from the Hui fund?
2. If the amount of $26,950 is the balance of the payout from the Hui fund, did the plaintiff own or effectively control this sum of money at the time that the drug trafficker declaration was made against her?
I will deal with each of these questions in turn.
Is the $26,950 the balance of the payout from the Hui fund?
76 The plaintiff's contention that the $26,950 is the balance of the payout from the Hui fund is based essentially on the above cited pars 11 to 14 of her affidavit.
77 The plaintiff also referred to the payout from the Hui fund in her statutory declaration dated 18 October 2012 provided to the police under s 37 of the Act. In par 4(d) of her statutory declaration the plaintiff stated that the money found in her safe was in part comprised of a pay out from the Hui fund. Specifically, the plaintiff said the following:
A person by the name of Bach, who is the head of the Vietnamese Hui Fund, of mobile 0422 244 154, gave me $34,000 which was my entitlement in the conclusion of the Vietnamese Hui community fund of which I was a member.
78 In addition, the plaintiff's daughter, a Ms Chloe Le Nguyen, has also asserted in a statement that she made to the police on 12 July 2013, and in a statutory declaration made by her on 27 July 2013 pursuant to s 37 of the Act, that the amount in question does come from the Hui fund payout. Both the police statement and the statutory declaration are annexed to the affidavit of Ms Woermann. In her statement to the police Ms Nguyen said the following:
I am 28 years old and I live in Balga.
My mother is Thi Thanh Ly of 5 Flanders Place, Alexander Heights.
In 2012 I gave my mother about $20,000 in cash to store in the safe at her house.
I think it was April or May, I can't remember exactly but it was after my wedding in March.
The money had been given to me as a wedding present and was also savings.
The savings had come from a Vietnamese game called a Hui which my mum played on my behalf. I don't really know how it works.
I am also known by the name Thuy Duong Thi LY.
This statement is true to the best of my knowledge and belief. I have made this statement knowing that, if it is tendered in evidence, I will be guilty of a crime if I have wilfully included in the statement anything that I know to be false or that I do not believe is true.
79 Ms Nguyen's statutory declaration was in the following terms:
I am the daughter of Thi Thanh LY.
1. On the 5th March 2012 my mum entered me in a Hui fund in which there were 18 members. I knew about this after my wedding in March 2012.
2. I contributed, to the best of my recollection $2,000 cash per month to the fund.
3. As I recall the funds was for five months [sic] and was closed on 5th August 2012.
4. I received $36,000 from the fund and gave these to my mum Thi Thanh LY to place in her safe for me.
5. Later I remember shopping with my mum and spending about $9,000 on varies (sic) things.
6. After this shopping the balance in the safe that my mum held on my behalf was about $27,000.
80 On the basis of the uncontradicted affidavit evidence of the plaintiff (which of course includes the annexures comprised of the Hui fund statement and the receipt) and the contents of Ms Chloe Nguyen's statement to the police and statutory declaration, I am satisfied on the balance of probabilities that the portion of the balance amount comprised of the $26,950 did represent what was left of the amount of $36,000 which had been paid out on the closure of the Hui fund on 5 August 2012.
Did the plaintiff own or effectively control the $26,950 at the time that she was declared a drug trafficker?
81 I turn to the second of the two questions that I have posed for my consideration.
82 It is in my view of some significance in dealing with this question that by the originating summons that the plaintiff filed in opposition to the first freezing notice, the plaintiff sought an order that the amount which comprised the balance of the payout of the Hui fund (specified in the summons as $27,400) be released to her. The application was not for an order that the sum be paid to her daughter Ms Chloe Nguyen.
83 It is also in my view of some significance in dealing with the posed question that the plaintiff in neither her statutory declaration nor her affidavit clearly and positively states that all of the funds paid out from the Hui fund were owned by or otherwise belonged to her daughter. To the contrary, in her statutory declaration the plaintiff states that the $34,000 was 'my entitlement in the conclusion of the … fund of which I was a member'. Further, in her affidavit the plaintiff, while she makes the point that it was her daughter who was registered as a participant in the fund and to whom the receipt for the paid out funds was made, states that she helped her daughter make her monthly contributions 'on behalf of both of us and our families' and that 'my daughter and I received from it the sum of $36,000.'
84 So far as Ms Chloe Nguyen is concerned, and as is apparent from the above cited portions of her police statement and statutory declaration, she provided, within a period of just over two weeks, two conflicting accounts. In her statement Ms Nguyen asserts that at some time after her wedding in March, she thinks in about April or May, she gave her mother $20,000 in cash for her mother to store in the safe at her house, that the money had been given to her as a wedding present, and that the money had come from a game called Hui which her mother had played on her behalf. Given that the Hui fund did not close until August 2012, Ms Nguyen's account as just stated cannot be right. In any event, 15 days later Ms Nguyen, in her statutory declaration, provides a markedly different account of events and one which is more in line with the version put forward by the plaintiff in her affidavit, namely that on 5 March 2012 her mother entered her in the Hui fund, that she found out about this after her wedding in March 2012, that she contributed $2,000 per month to the fund, that the fund closed on 5 August 2012, that she received $36,000 (not $20,000) from the fund, that she gave this amount to her mother so that her mother could place this amount in the safe for her, and that she remembers shopping with her mother and spending about $9,000 of the $36,000 on various things.
85 When I take into account the terms of the order sought by the plaintiff in her originating summons, statements made by the plaintiff in her statutory declaration and in her affidavit to which I have referred, the plaintiff's failure to state clearly and unequivocally in her affidavit that all of the payout funds were owned by her daughter, and the inconsistencies which exist between not only what Ms Chloe Nguyen said in her police statement and statutory declaration but also between what she said in these documents and what the plaintiff has said on the subject, I am satisfied on the balance of probabilities that the plaintiff was the owner of at least an unquantifiable portion of the total sum paid out from the Hui fund. However, when I bear in mind that the fund statement does record Ms Nguyen as the 11th of 18 unit holders in the fund, that the plaintiff does assert in her affidavit that she 'helped' her daughter to make her monthly contributions on behalf of 'both of us and our families', that the receipt for the payout from the fund is made out to Ms Nguyen, and that the amount of the $36,000 pay out that had been spent by the time the cash was seized was spent either with Ms Nguyen's authority or at least with her knowledge and consent, I cannot satisfy myself on the available evidence that it is more probable than not that the plaintiff was the owner of all of the $26,950 at the time that the plaintiff was declared a drug trafficker. I am satisfied that some of this amount belonged to and was owned by Ms Nguyen. I would therefore not make a declaration sought by the State in respect of all of the $26,950 on the basis that the plaintiff owned this entire amount at the time that she was declared a drug trafficker.
86 I turn then to the question whether the plaintiff was in effective control of that portion of the $26,950 that was owned by Ms Nguyen.
87 In McLeod v The State of Western Australia [2015] WASC 48 Jenkins J was concerned with an application by the plaintiffs made under s 82 of the Act to set aside a freezing notice. In the course of dealing with the application her Honour was required to give consideration to the meaning of the definition of 'effective control' in s 156 of the Act. After referring to the terms of s 156 her Honour said the following [21]:
Thus, by the terms of … s 156(1), in order to establish that the Property is not effectively controlled by the first plaintiff, the onus is on the second plaintiff to establish all three of the following propositions:
(1) the first plaintiff does not have the legal estate in the property; and
(2) the Property is not directly or indirectly subject to the control of the first plaintiff; and
(3) the Property is not held for the ultimate benefit of the first plaintiff.
88 Having made this statement (which of course was made in the context of an application in which the second plaintiff bore the onus of proving that the first plaintiff was not in effective control of the property), her Honour then referred to two decisions which bore upon the meaning of the term 'effective control' as well as some dictionary definitions of the word 'control'. Her Honour then in effect concluded that for the purposes of the definition of 'effective control', property is directly or indirectly subject to the control of a person if the person has the power or capacity, in fact, to directly or indirectly, direct or command the possession, use or disposition of the property: [27]. I respectfully adopt her Honour's reasoning and conclusion.
89 The plaintiff at least contributed to the monthly contributions. The amount paid out from the fund, even if the receipt was issued in the name of Ms Nguyen, was either paid directly to, or very quickly found its way into the hands of, the plaintiff. The plaintiff kept the funds in her safe. She was the person who had the combination number to the safe. She used some of the funds to pay for family household and living expenses as well as some jewellery albeit, she asserts, with the authority of her daughter. By her originating summons she sought an order that the funds in question be released to her. In these circumstances I am satisfied on the balance of probabilities that the plaintiff did at all times that she was in possession of the funds, and consequently also at the time that she was declared a drug trafficker, have the power or capacity, in fact, and regardless of whether she sought her daughter's permission, to direct or command the use or disposition of that portion of the $26,950 that was owned by her daughter. In other words, I am satisfied on the balance of probabilities on the available evidence that the plaintiff effectively controlled that portion of the $26,950 that she was not the legal or beneficial owner of at the time that she was declared a drug trafficker and that consequently this amount was automatically confiscated under s 8(1) at the time of that declaration. Given that I am satisfied on the balance of probabilities that the plaintiff was, at the time she was declared a drug trafficker, the owner of a portion of $26,950 and in effective control of that portion which was owned by her daughter, I would make the declaration sought by the State and dismiss the plaintiff's objection, in respect of the part of the balance amount comprised of the $26,950.
Conclusion
90 Subject to hearing from the parties as to the precise terms of the orders that I should make in order to give effect to my decision, I would, for the reasons I have stated, declare pursuant to s 30(2) of the Act that the following property has been confiscated to the State:
(1) Cash in the sum of AUD$96,950 taken from Phi Van Tran on 12 September 2012 at 5 Flanders Place, Alexander Heights together with any interest thereon;
(2) 2005 Toyota Camry, 1DSO123, VIN 6T153XK360X317931, engine number 1MZ1860884;
(3) 2005 Toyota Camry, 1DJQ914, VIN 6T153BK360X078014, engine number 2AZA234890;
(4) Money standing to the credit of the plaintiff in Bank of Western Australia account number 115-036004-9 as at 20 December 2013, together with any interest earned thereon;
(5) Money standing to the credit of the plaintiff in Commonwealth Bank account number 6120 0063 4216 as at 20 December 2013, together with any interest earned thereon; and
(6) Money standing to the credit of the plaintiff in National Australia Bank account number 82-977-9212 as at 20 December 2013, together with any interest earned thereon.
91 I would also for the reasons I have stated order that the first freezing notice is set aside in respect of $15,000 of the total amount of $111,950 taken from Phi Van Tran on 12 September 2012 at 5 Flanders Place, Alexander Heights together with any interest thereon, and otherwise dismiss the plaintiff's objection to the confiscation of the property the subject of the first freezing notice and the second freezing notice.
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