Perfect Choice Travel Australia Pty Ltd v Director of Public Prosecutions

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

CONFISICATION LIST

Case No. CI-19-05318

IN THE MATTER of the Confiscation Act 1997
and
IN THE MATTER of property a police officer suspects on reasonable grounds is tainted property in relation to a Schedule 2 offence
and
IN THE MATTER of applications for exclusion orders pursuant to section 36U of the Confiscation Act 1997
BETWEEN:
PERFECT CHOICE TRAVEL AUSTRALIA PTY LTD & ORS (according to attached Schedule)	Applicants
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 to 16 and 19 to 21 February 2024
DATE OF JUDGMENT:	27 May 2024
CASE MAY BE CITED AS:	Perfect Choice Travel Australia Pty Ltd & Ors v DPP
MEDIUM NEUTRAL CITATION:	[2024] VCC 714

REASONS FOR JUDGMENT
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Subject:CONFISCATION
Catchwords:              Cannabis crop house – Multiple properties - Definition of “derived property” – Definition of “tainted property” - Whether property is “tainted property” – Where applicant bears the onus of proof – Whether evidence of primary applicant is unreliable – Whether subdivided property should be treated as single unit or separate lots – Whether sublease present – Coincidence evidence
Legislation Cited:      Confiscation Act1997
Cases Cited:Hong Yen Le v DPP (2007) 171 A Crim R 196; Grillo v DPP [2011] VSC 575; Briginshaw v Briginshaw (1938) 60 CLR 336; Fox v Percy (2003) 214 CLR 118; Jones v Dunkel [1959] 101 CLR 298; Chalmers v R (2011) 37 VR 464; [2011] VSCA 436; Director of Public Prosecutions v George [2008] SASC 330, Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88, R v Penrose (No 2) [2016] VSC 191, CGL v DPP (2010) 234 VR 486, R v Milenkovic (2005) 158 A Crim R 4; Henderson v Queensland [2014] HCA 52; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) ALR 449; Periera v DPP (1988) 63 ALR 1
Judgment:

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Ms G Costello KC Ms A Roodenburg	Meerkin & Apel
For the Respondent	Ms E Ruddle KC Ms H Jager	Solicitor for the Office of Public Prosecutions

Glossary

Relevant parties

Bac Le Vu	Tenant of the Springvale property in 2016
CUI Investments (“CUI”)	Company owned by Jason Wang to purchase the Archies Creek properties
De Van Nguyen	Pleaded guilty to cultivating a narcotic plant in not less than a commercial quantity at the Archies Creek properties
Diem Pham	Director of Perfect Choice Travel Australia Pty Ltd, GMR Australia Pty Ltd and HTD Investments Pty Ltd
GMR Australia Pty Ltd (“GMR”)	A company of which Diem Pham and Mei Qi Chen are directors. The company is the registered proprietor of the Archies Creek properties
Hiep Phu Kenny Pham	Real estate agent at iSell Group involved in the tenanting of the Mentone property in 2017
HTD Investments Pty Ltd (“HTD”)	A company formed with Diem Pham, Huyen Mai and Trang Mai
Jason Wang	Property developer who went into business with Diem Pham to purchase the AC property
Lam Son Nguyen	Former partner of Diem Pham, friend of Manh Cuong Nguyen and director of LLL Aust Plastic Bags who leased a factory lot located at 93 Archies Creek
Manh Cuong Nguyen	Former partner of Diem Pham
Mei Qi Chen	Director and secretary of GMR Pty Ltd; and sole director of CUI Investments Pty Ltd
Perfect Choice Travel Australia Pty Ltd (“Perfect Choice Travel”)	A company of which Diem Pham was the sole shareholder
Phu Hoa Hoang	Employed by Manh Cuong Nguyen in 2009, friend of Diem Pham, asked in 2017 by Manh Cuong Nguyen to grow cannabis plants in his hotel
Phuong Kim Vu	Real estate agent at Harvey Real Estate (Harcourts Unity) involved in the tenanting of the Springvale property in 2015 and 2016
Thong Le	Real estate agent ay iSell Group involved in the tenanting of the Mentone property in 2017
Tuan Nguyen	An initial business partner of Jason Wang and Diem Pham who dropped out of the Archies Creek venture
Van Hoa Vu	Alleged sublessee of the factory lot at 93 Archies Creek and pleaded guilty to cultivating a narcotic plant in not less than a commercial quantity
Van Thuan Le	Tenant of Mentone property in 2017

Relevant properties

25 Royal Avenue, Springvale – “The Springvale property”

102 Beach Road, Mentone – “The Mentone property”

83 and 93 Archies Creek Road, Archies Creek – “The AC properties”

Table of Contents

Introduction

Tainted property – but the Pham entities were not involved
Not tainted property

Relevant background matters

Personal history of Diem Pham
The AC properties
The Springvale property
The Mentone property
Chronology of raids on cannabis crop houses

Central issues at trial

Relevant statutory provisions

S36V of the Confiscation Act
S7A – Definition of “derived property”
S3 – Definition of “tainted property”

The relevant principles

Can the Applicants discharge their burden in relation to the agreed tainted property?

The Springvale property

Is the evidence of Diem Pham about the Springvale property reliable?
Was the lease of the Springvale property at arm’s length?

The Archies Creek properties

Is the evidence of Diem Pham reliable in respect of the Archies Creek properties?
Was the lease of the Archies Creek properties at arm’s length?
Did LLL sublease the factory lot at 93 Archies Creek to Van Hoa Vu?
Should the Archies Creek properties be treated as a whole unit or separate lots?

Definition and scope of ‘tainted property’

Which lots on 83 and 93 Archies Creek are tainted property?

The Mentone property

Is the evidence of Diem Pham about the Mentone property reliable?

Was the 2015 lease to Van Thuan Le omitted?

Was the lease of the Mentone property at arm’s length?

Evidence of Hiep Phu Kenny Pham
Evidence of Thong Le

Overall finding on whether Diem Pham can discharge the onus of proof

Coincidence evidence

HIS HONOUR:

Introduction
1In 2016 and 2017, police conducted raids on three different days on three different properties. At each of those locations, cannabis crop houses (“CCH”) were located. In each of those properties, Diem Pham, or a company of which she was a director, held property rights (“the Pham entities”). After the raids, the Director of Public Prosecutions (“the Director”) obtained confiscation forfeiture restraining orders (“CFRO”) against the properties which were the subject of the raids. The Pham entities have applied for their interests in the restrained properties to be excluded pursuant to s36U of the Confiscations Act 1997 (“the Act”). Those applications are brought on two bases.
Tainted property – but the Pham entities were not involved
2The first is that, while the Certificate of Title and Folio lots where the CCH were located are derived and tainted property, the Pham entities:
(a) Did not know of and were not wilfully blind:
(i)To the cultivation of the cannabis at the CCH;
(ii)As to there being a significant or real chance that the cannabis was a commercial quantity;
(iii)As to there being a significant or real chance that the cannabis was being cultivated for sale; or

3If no part of (a) applies, they were nevertheless not involved in the commission of a Schedule 2 offence namely cultivating cannabis in a commercial quantity.[1]The parties accepted that the Court of Appeal in Le v DPP (“Le”),[2] where Nettle JA set out the principles to be applied in determining the phrase “in anyway involving the commission” of an offence, applied. The parties also accepted that knowledge encompassed “wilful blindness”.
[1]Grillo v DPP [2011] VSC 575 at [69]
[2](2007) 171 A Crim R 196 (“Le”) at paragraph [22]
Not tainted property
4The second basis the Pham entities sought exclusion orders was that:
(a)   only part of the property on which the CCH was located at 93 Archies Creek Road was tainted and the remainder, being specifically Certificate of Title 10304, Folio 799, was not; and/or
(b)   83 Archies Creek Road is not tainted property and ought be excluded entirely.
5The Pham entities further argued that if the Court found against them on these points and all the properties at Archies Creek were tainted then they relied on the arguments set out above at [2].
6For the reasons set out below I have found:
(a) The Pham entities cannot prove that they were not involved in the commission of the offences and knew, which encompasses being wilfully blind, that the properties would be or were intended to be used in the commission of the offences on the properties in accordance with s36V(1)(b)(ii)[A] and alternatively that they knew the properties were likely to be or were intended to be used in connection with the future commission of offences on the properties pursuant to s36V(1)(b)(ii)[B];
(b)   As such the Pham entities must fail in their applications in respect of the Springvale property, the lot on which the CCH was found at 93 Archies Creek and the Mentone property;
(c)   83 Archies Creek and the Certificate of Title on 93 Archies Creek on which the CCH was not located is not tainted property within the meaning of the Confiscation Act and to that extent the Pham entities succeed in their application to discharge the CFROs.

Relevant background matters
Personal history of Diem Pham
7Diem Pham was born in March 1967 in Vietnam. She studied literature to tertiary level. She came to Australia in June 1990 and shortly thereafter married Quang Vinh Ngo. They have two children, being Jane Ngo, born March 1994, and Carly Ngo, born January 1998. Diem Pham and Quang Vinh Ngo divorced in about 1999.
8It is undisputed that during the period they were married, Diem Pham and Quang Vinh Ngo bought and sold a number of properties, primarily to be used as their personal residence. It is uncontroversial that through the buying and selling of properties they made some financial gains.
9After separating from her husband, Diem Pham purchased further properties in 2001, 2002 and then again in 2004.[3] Once again, she realised some financial benefit as a result of these purchases and subsequent sales.
[3]Court Book (“CB”) 266 at [24] –[27].
10The first relevant property purchase for the purpose of this proceeding occurred in June 2005, when Diem Pham purchased 102 Beach Road, Mentone for $1.2 million. This property was one of the properties raided by police and is subject to a CFRO.
11In 2005, Diem Pham also purchased a retail business, named TSG Noble Park, at 28 Douglas Street, Noble Park.[4] It primarily sold tobacco-related products and other retail items.
[4]CB 267 at [32]
12In May 2006, Diem Pham registered the company, Perfect Choice Travel Australia Pty Ltd (“Perfect Choice”), and was its registered director. She deposed that she registered this business, as she had a background in travel sales and hoped to continue that business.
13In January 2008, the Mentone property was subdivided into lots 102 and 102A. Shortly thereafter, the property at 102A Beach Road, Mentone was sold. The property 102 Beach Road, Mentone (“the Mentone property”) is owned by Diem Pham in her personal capacity. It was raided on 7 September 2017 and cannabis of a commercial quantity was discovered.
14In January 2009, Diem Pham met Manh Cuong Nguyen.[5] Manh Cuong Nguyen operated a restaurant named “Vi Em” in Abbotsford, Melbourne.[6] At that time a gentleman named Phu Hoa Hoang worked at the restaurant. It is useful to flag his identity now as he features in events in 2016 and 2017.
[5]CB 274
[6]Transcript (“T”) 106 L2-10.
15Shortly after meeting, Manh Cuong Nguyen began a relationship with Diem Pham. He commenced living with Diem Pham and her children.
16In July 2013, Diem Pham and two friends, Huyen Mai and Trang Mai, formed a company titled HTD Investments Pty Ltd (“HTD”), in order to pursue property investment opportunities.
The AC properties
17In mid-2013, Diem Pham became interested in properties at 83 and 93 Archies Creek Road, Archies Creek. Particularly, at each street address, there were a number of separate titles and folios identifying landholdings.
18At 83 Archies Creek, there were:
·        Certificate of Title 10304, Folio 798, Lot 1 on Plan of Subdivision 400020Q;[7]
·        Volume 8133 Folio 558, Lot 1 on Title Plan 639300M Crown, formerly knowns as Allotment 115 (“the reception centre lot”);[8]
·        Certificate of Title 2965, Folio 941, Title Plan 762853D, Crown Allotment 115D Parish of Wonthaggi North[9]; and
·        Certificate of Title 8141, Folio 688, Title Plan 789696R, Crown Allotment 115F.[10]
[7]My amendments to CT and Folio taken from CFRO at CB 19;773,787
[8]CB 769, 784
[9]CB 771
[10]CB 767, 781
19At 93 Archies Creek, there were:
·        Certificate of Title 03067, Folio 273, Crown Allotment 115E (“the factory lot”);[11] and
·        Certificate of Title 10304, Folio 799, Lot 2 on Plan of Subdivision 400020Q.[12]
[11]My amendments to CT and Folio taken from CFRO at CB 23; CB775, 787
[12]My amendments to CT and Folio taken from CFRO at CB 19, CB774, 787,788
20Together, these parcels of land are defined as the “AC properties”. Below is a diagram of the AC properties and the various Certificates of Title and Lot numbers.

Figure 1: 83 Archies Creek

Figure 2: 93 Archies Creek
Figure 3: AC Properties
21The CCH is marked with an X and is located at 93 Archies Creek on Certificate of Title 03067, Folio 273 (“the factory lot”). The alleged location the crop sitter slept is marked A and is located at 83 Archies Creek on Certificate of Title 8133, Folio 558 (“the reception lot”). The AC properties were raided on 7 April 2017 and a commercial quantity of cannabis was located at 93 Archies Creek in the building on the factory lot, being on Certificate of Title 03067, Folio 273.
22Returning to the chronology. In September 2013, Diem Pham, as director of HTD, signed a Contract of Sale for the AC properties. Shortly thereafter, Diem Pham deposes that HTD was unable to raise funds to complete the purchase, which is a fact she mentioned to Manh Cuong Nguyen.[13] Manh Cuong Nguyen mentioned that he knew two people, Jason Wang and Tuan Nguyen, who may be interested in acquiring the land. He set up a meeting with those two men. At that meeting, it appears that Jason Wang, Tuan Nguyen and Diem Pham agreed to proceed with the purchase and development of the AC properties into a reception centre used for international Chinese and Vietnamese visitors as a base to showcase the natural features of the surrounding Wonthaggi area. To do so, it was agreed that HTD would not feature in the corporate purchase and development structure, but would nominate another company under the control of Jason Wang and Tuan Nguyen to take over this role. That entity was GMR Australia Pty Ltd (“GMR”) and Diem Pham would be appointed a director of that company. In due course, settlement of the AC properties occurred, with GMR being the holding entity which gave, relevantly, Diem Pham 49 per cent interest and a controlling interest of 51 per cent to Jason Wang via a company he controlled named CUI Investments Pty Ltd.
[13]CB 274, [63]
23Shortly thereafter, on 1 July 2014, GMR leased a portion of 93 Archies Creek Road, which contained an unused brick factory, to LLL Aus Plastic Bags Pty Ltd (“LLL”).[14] The director of LLL was Lam Son Nguyen. Attention focused on this lease and how it was that Lam Son Nguyen came to lease the premises from GMR. It is enough to note, at this stage, that there is debate as to how Lam Son Nguyen came to be the tenant.
[14]CB 280
24At some unknown stage, it is alleged LLL subleased the factory lot it occupied at 93 Archies Creek to Van Hoa Vu. The position of the Director was that there was no sublease at all and that this was a sham designed to implicate the crop sitter and protect his employer.[15] There is some debate between the parties as to whether or not he was hired and given instructions by Diem Pham or someone else.
[15]T43-44
25The AC properties were raided on 7 April 2017 and cannabis in a commercial quantity was located. Van Hoa Vu was arrested and subsequently pleaded guilty to cultivating a narcotic plant in not less than a commercial quantity. Sleeping quarters for the alleged crop sitter were also uncovered at the reception centre lot, 83 Archies Creek, Certificate of Title 8133, Folio 558.
The Springvale property
26Returning to the chronology. In mid-2016, HTD purchased a property at 25 Royal Avenue, Springvale (“the Springvale property”). The purchase of the property was to allow it to be tenanted as a residential property.
27Diem Pham then signed a lease authority with Harvey Real Estate (Vic) Pty Ltd trading/as Harcourts Unity (“Harcourts Unity”). The lease authority permitted Phuong Kim Vu, a real estate agent employed there, to arrange for the property to be tenanted.[16] The Springvale property was leased to Bac Le Vu on 30 August 2016. It is sufficient, at this stage, to note that there is real debate as to how Bac Le Vu came to be the tenant of the Springvale property. The debate centres around whether Diem Pham personally installed him as the tenant or whether he became a tenant after the usual process adopted by Phuong Kim Vu, the real estate agent responsible for the property.
[16]CB 306-7, Further Amended Supplementary Joint Court Book (“SCB”) 9
28On 19 December 2016, police conducted a raid on the Springvale property. There, 481 cannabis plants weighing 198.82 kilograms were found i.e.. a commercial quantity of a narcotic plant. After the raid, the property was cleaned, patched up and re-leased.
The Mentone property
29In February 2017, Diem Pham and her family moved out of the Mentone property.
30On 28 February 2017, the Mentone property was leased to Van Thuan Le.[17] It is sufficient to note, at this stage, that there is debate as to how the Mentone property was leased. Diem Pham deposes that the tenant was selected via the usual process through a real estate agent, Hiep Phu Kenny Pham of iSell Group (“iSell”).[18] She further deposed that she never had contact with Van Thuan Le during any lease negotiations and that all negotiations were done through Hiep Phu Kenny Pham.[19] This is disputed by the Director, who relies on the evidence of Thong Le, the leasing real estate agent at iSell, who deposes that he was instructed by Diem Pham to lease the property to Van Thuan Le.
[17]CB 296, 1309, 6104
[18]CB 296
[19]CB 296
Chronology of raids on cannabis crop houses
31As recorded above on 7 April 2017, police raided the AC properties and the CCH was discovered at the factory lot.
32A person by the name of Van Hoa Vu was located at the site. He was questioned, subsequently arrested and pleaded guilty to a charge of cultivating a narcotic plant in not less than a commercial quantity. There is some debate between the parties as to whether or not he was hired and given instructions by Diem Pham or someone else.
33In around 2017, Diem Pham became aware that Manh Cuong Nguyen’s factory in Clayton had burnt down and that equipment that could be used to cultivate cannabis had been found.[20] This was said to be relevant as it may well have raised Diem Pham’s suspicion that Manh Cuong Nguyen was involved in cultivating cannabis.

[20]First affidavit of Diem Pham, dated 20 August 2021, paragraph [94] at JCB 284
34On 27 June 2017, Harcourts Real Estate re-let the Springvale property.
35On 7 September 2017, police conducted a raid on the Mentone property. There, 347 cannabis plants weighing 120.47 kilograms were found.
36In late 2017, Manh Cuong Nguyen visited a friend by the name of Phu Hoa Hoang who he had worked with in about 2009. Phu Hoa Hoang had purchased a hotel in Bairnsdale. At that visit in 2017, Manh Cuong Nguyen offered to pay Phu Hoa Hoang $300,000 if he allowed him to grow cannabis at the Bairnsdale Hotel. Phu Hoa Hoang declined this offer. This becomes relevant because after the raid on the Mentone property, Diem Pham told Phu Hoa Hoang of the raids on her properties and, he, in turn, told her of Manh Cuong Nguyen’s offer regarding the Bairnsdale Hotel.[21] The relevance of this is said to lie in the fact that Manh Cuong Nguyen’s involvement with cannabis cultivation was known to Diem Pham at the time of her first affidavit in this proceeding in August 2021, and yet she did not mention these matters of his involvement until 2023. It was only at this time when she began to suggest in her affidavits that it was Manh Cuong Nguyen who was responsible for the use of the Springvale, Mentone and AC properties for cannabis cultivation.
[21]CB 2023, paragraph [11]
37In May 2018, police searched Diem Pham’s home in Hillcrest and took her phones. Nothing was found on those phones, or at her home, to incriminate her. The phones were subsequently returned to her. On 19 June 2018, Diem Pham entered a sale of her TSG Noble Park business for some $650,000, plus stock valued at $150,000, to Kevin Tran. She continued to work there during the time that Kevin Tran paid off the outstanding sale amount.
38On 26 September 2019, HTD sold the Springvale property for $1.84 million.[22]
[22]CB 288
39Shortly thereafter, proceedings in this matter began when the Director made an application on 8 November 2019, pursuant to s36K of the Act, for CFRO’s in respect of the Springvale property, the AC properties and the Mentone property.
40Broadly, exclusion applications by Diem Pham, HTD, GMR and Perfect Choice were subsequently made pursuant to s36U. As to the sale of the Springvale property, the proceeds were paid into trust subject to further orders of the Court. Ultimately, it appears that settlement occurred of some of the various s36U exclusion order applications. In relation to the Springvale property, orders were made by consent so that the Mai sisters had 56 per cent of the proceeds of sale, after expenses, excluded. Similarly, as to the AC properties, CUI Investments, by consent, had 51 per cent of their interests in the AC properties excluded.

Central issues at trial
41The case at trial revolved primarily around whether Diem Pham and by extension the Pham entities could discharge the onus they bore of demonstrating that she was not involved in the commission of the offence, being the cultivation of a commercial quantity of a narcotic plant, namely cannabis. This turned on whether the evidence Diem Pham gave about tenanting each property at arm’s length through others could be accepted. The Pham entities submitted that her evidence was credible, reliable and supported in other ways, and that each property was dealt with via a third-party real estate agent, or other company director in the case of the AC properties. As such, it was submitted, Diem Pham was not involved with the commission of an offence. In contrast, the respondent sought to demonstrate that Diem Pham was directly involved in the tenanting of each property, which if accepted undermined the veracity of her evidence such that it was unreliable. In that setting the respondent submitted her case could not succeed.

Relevant statutory provisions
42I will start by setting out the relevant statutory provisions applicable to the determination of this matter.
S36V of the Confiscation Act
43Section 36V of the Act states:
“Determination of application for exclusion from civil forfeiture restraining order
(1) On an application under section 36U, the Supreme Court or the County Court, as the case requires, may make an order—
(a) excluding the applicant’s interest in the property from the operation of the civil forfeiture restraining order if the court is satisfied that—
(i) the property is not derived property; and
(ii) the property is not tainted property; or
(b) excluding the applicant’s interest in the property from the operation of the civil forfeiture restraining order if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that—
(i) the applicant was not, in any way, involved in the commission of any relevant Schedule 2 offence; and
(ii) where the applicant acquired the interest before the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant did not know that the property—

(A) would be, or was intended to be, used in, or in connection with, the commission of any of those offences; or
(B) was likely to be, or intended to be, used in, or in connection with, the future commission of any of those offences; and
(iii) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and

(iv) the applicant’s interest in the property—
(A) was not subject to the effective control of another person on the date that the civil forfeiture restraining order was made in relation to the property; or
(B) was subject to the effective control of another person on the date that the civil forfeiture restraining order was made in relation to the property but the person in effective control satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person in effective control; and
(v) where the applicant acquired the interest, directly or indirectly, from another person that—

(A) it was acquired for sufficient consideration; or
(B) if it was not acquired for sufficient consideration, the person from whom the interest was acquired satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person from whom the interest was acquired.
(2) If the court makes an order under subsection (1) the court may also make an order declaring the nature, extent and value of the applicant’s interest in the property.

(3) In this section—
relevant Schedule 2 offence means a Schedule 2 offence in relation to which the civil forfeiture restraining order was made.”

S7A – Definition of “derived property”
44In s7A of Confiscation Act, “derived property” is defined as:
“(1)In relation to civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order, derived property means—
(a) property used in, or in connection with, any unlawful activity; or
(b) property derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity; or (c) property derived or realised, or substantially derived or realised, directly or indirectly, from property of a kind referred to in paragraph (a) or (b).

(2) Without limiting subsection (1), property is derived from property of a kind referred to in subsection (1)(a) or (b) if it is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property of a kind referred to in subsection (1)(a), (b) or (c).”

S3 – Definition of “tainted property”
45In s3 of the Act, “tainted property” is defined as:
“(a) in the case of civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order, property that—
(i) was used, or was intended to be used in, or in connection with, the commission of one or more Schedule 2 offences; or
(ii) was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i); or
(iii) was derived or realised, or substantially derived or realised, directly or indirectly, from the commission of one or more Schedule 2 offences; or
(iiia) is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property referred to in subparagraph (i), (ii) or (iii); or
(iv) is likely to be used, or intended to be used in, or in connection with, the future commission of one or more Schedule 2 offences; or

… .”

The relevant principles
46Utilising the terminology employed by Kyrou J in the matter of Grillo v DPP (“Grillo”),[23] the Pham entities will succeed if they establish, on the balance of probabilities, that:
[23][2011] VSC 575 at [69]
(a)   they did not know of, and were not wilfully blind:
(i)to the cultivation of cannabis at:
·     the Springvale property;
·     the AC property;
·     the Mentone property;

(ii)as to there being a significant or real chance that the cannabis was a commercial quantity; or
(iii)as to there being a significant or real chance that the cannabis was being cultivated for sale; or

(b) if no part of (a) applies, they were, nevertheless, not involved in the commission of offences for which Van Hoa Vu or De Van Nguyen pleaded guilty to.
47As his Honour, Nettle JA stated in Le:[24]
“… the onus is on the applicant to satisfy the court on the balance of probabilities that the applicant was not involved in any way in the commission of the offence. … .”
(Footnote omitted.)
[24]Le at paragraph [24]

48The parties before me accepted that the principles in Le and Grillo were correctly expressed and bound this court.
49As to all the property at 83 Archies Creek and the back lot of 93 Archies Creek, however, the applicant put in issue whether these properties were tainted property at all. As to this Ms Costello KC submitted that s140 of the Evidence Act 2008 had operation. Essentially, this seemed to be that Briginshaw[25] principles applied in respect of all the lots at the AC properties, but not the factory lot, where the CCH was located.[26] She submitted:
“In considering whether there’s evidence that the property is tainted by use in connection with criminal offending, Your Honour ought to apply the uncontroversial and well-known authority of 23 Neat Holdings v Karajan, … .”[27]
No authority was cited for that proposition.
[25]Briginshaw v Briginshaw (1938) 60 CLR 336
[26]T658, L20-24
[27]T658, L20-24
50The point was mentioned in passing in the trial decision of Commissioner of the Australian Federal Police v Courtenay Investments Ltd [2016] WASCA 194. In that case the trial Judge His Honour Justice Edelman considered the issue of whether a restraining order ought be discharged. That involved a consideration of whether a central witness had engaged in criminal behaviour. In considering the matter his Honour considered that the principles in Briginshaw ought apply. The matter went on appeal and Edelman’s J decision was upheld. Though the issue of the standard of proof was not specifically raised on appeal the Court of Appeal made no mention that in reaching his conclusion the trial judge was incorrect. I therefore consider that the relevant standard of proof to be applied is the civil standard with regard to the principles applied in Briginshaw. I have conducted the exercise of weighing the evidence below and reaching my decision on that basis.

Can the Applicants discharge their burden in relation to the agreed tainted property?
The Springvale property
Is the evidence of Diem Pham about the Springvale property reliable?
51I begin with the task of considering whether the Pham entities can discharge their burden in accordance with s36V(1)(b) in relation to the agreed tainted property. It will be recalled that the parties agree that the Springvale and Mentone properties are tainted property for the purposes of section 36V. They further agree that the factory lot on 93 Archies Creek is tainted property. I will deal with these properties in the order in which they were discovered to be CCHs, meaning I will first consider the Springvale property, followed by the factory lot on 93 Archies Creek, and then the Mentone property.
52The primary witness the applicants called in aid was Diem Pham. Broadly speaking, her evidence set out:
·        Her personal background;
·        Her involvement in property acquisition, rental and sale for profit;
·        The establishment of corporate entities used to purchase properties;
·        Financing arrangements to explain her property investments;
·        Her involvement with Manh Cuong Nguyen;
·        Her involvement with the Springvale, AC and Mentone properties; and
·        Events surrounding the police raids on the Springvale, AC and Mentone properties.
53Much of her evidence was prepared in 2021. At that time CFROs had been obtained on the basis that the three properties had been purchased, in part or wholly, with the proceeds of crime. Her 2021 affidavit focused on this point. However, this allegation was not pressed at the trial of this matter before me and, therefore, large parts of Diem Pham’s evidence from the 2021 affidavits became irrelevant as to the source of funds used for purchase, but did provide background to her financing arrangements for various property purchases.
54The primary evidence relied upon in Diem Pham’s material went to three areas. First, that she tenanted her properties through real estate agents at arm’s length. Second, that she had no prior knowledge of the tenants renting those properties at the time the properties were leased. Third, as to the AC properties, while she introduced the prospective tenant, Lam Son Nguyen, who was the director of LLL, to Jason Wang, who made the lease arrangements, Diem Pham had no knowledge at all of the alleged sub-lease that LLL entered with De Van Nguyen. It is De Van Nguyen who pleaded guilty to cultivating a narcotic plant of not less than a commercial quantity
55In many ways, the case is determined on whether Diem Pham’s evidence is believed in relation to these matters. While the respondent suggested it was a binary matter, where rejection of Diem Pham’s evidence must lead to a failure of the applicants’ case, I reject that submission. Rather, her evidence must be assessed with all of the evidence in the case and having regard to the apparent logic of events.[28]
[28]Fox v Percy (2003) 214 CLR 118 (“Fox”)
Was the lease of the Springvale property at arm’s length?
56Starting, with the leasing of the Springvale property. It will be recalled that HTD was formed in 2013 as a company to allow Huyen Mai, Diem Pham and Trang Mai, to buy, rent and develop properties for financial gain. It was accepted that Diem Pham was the active director and was to arrange for purchasing and renting of the properties that HTD purchased. In April 2016, HTD purchased the Springvale property. On 3 August 2016, Diem Pham, on behalf of HTD, executed a leasing authority with Harcourts Unity. The relevant real estate agent was Phuong Kim Vu. Shortly afterward, the Springvale property was leased to a gentleman named Bac Le Vu. There was controversy between the parties as to whether this was a transaction which was, as Diem Pham deposed, an arm’s length transaction, or whether Diem Pham had directly placed Bac Le Vu into the property.

57In her affidavit material, Diem Pham referred to the purchase and leasing of the Springvale properties briefly in her first affidavit.[29] She did not go into any detail about Bac Le Vu taking up tenancy of the property. In her further affidavit of 16 August 2023,[30] she went into greater detail about the property itself, but this largely related to the source of funds for the purchase price. In a further affidavit of 6 December 2023,[31] she stated at paragraph [14]:
“Upon finding out about the raids and the cannabis, I was shocked. I had trusted the respective real estate agencies to manage the properties, including by conducting proper checks on prospective tenants and carrying out inspections of the properties. … .”[32]
[29]CB 282,306-7 Affidavit of Diem Pham, 20 August 2021 at paragraph [91],[213] and [214]
[30]CB 1990
[31]CB 2013
[32]CB 2013
58She reinforced the important role real estate agents played in her property portfolio during her cross-examination. She gave evidence that she told Manh Cuong Nguyen, on more than one occasion, that all prospective tenants ought to go through a real estate agent and that he knew she had a “strong view” about that. This, in part, was for taxation reasons.[33] As to the instructions she gave to the real estate agents as to the type of tenants that were suitable, she gave evidence that what was important in a tenant was “[a]nyone who can afford the rent because my main aim is to be able to service the mortgage … of the property”.[34] As to whether she rented directly to a tenant without an agent, she answered emphatically that she did not.[35] She qualified this by saying that she may have done so in the “earlier years”, but it was such a long time ago that she could not remember.[36]
[33]T71-2, L20
[34]T65, L3-5
[35]T65, L6-13
[36]T72, L16
59It was submitted by the respondent that this evidence was unreliable and untruthful. This was said to be so primarily because it conflicted with the evidence of Phuong Kim Vu, the real estate agent of Harcourts Unity. Her affidavit evidence deposed as follows: [37]
“On or about 30 August 2016, Bac Le Vu (VU) came to the office of Harcourts Unity with a lady who claimed she was his wife to submit a rental application for the Springvale property. When I asked the lady to submit her application and supporting documents she said she worked in cash and did not want to put her name on the lease. We told them that the application was not strong enough to be accepted. They said they know [Diem] PHAM and she told them to come to our office to apply. … .”
[37]Affidavit of Phuong Kim Vu, sworn 9 February 2024, paragraph [7] at SCB 9
60And she went on, at paragraph [8]: [38]
“I brought [Bac Le] VU’s rental application to [Diem] PHAM and advised her that the rental application was not secured, there was no rental history and [Bac Le] VU had rented through a private landlord so we could not do reference checks. [Diem] PHAM said she knew the family as they came to shop at her shop very often and [Diem] PHAM instructed me to make the lease agreement for them. … .”
[38]Ibid at paragraph [8]
61Diem Pham was taken to Phuong Kim Vu’s evidence. She first accepted it was a real estate agent’s job to pick good tenants.[39] When asked why she did not accept the real estate agent’s recommendation not to lease to Bac Le Vu, Diem Pham made it clear that she did not know Bac Le Vu. She went on to say that she knew Bac Le Vu’s wife, as she had visited Diem Pham at her shop. She knew this person was a nail technician and described her as “classy” and this is the reason she felt she would accept them as tenants. [40]
[39]T150, L18
[40]T150, L20-28

62There are numerous inconsistencies in the version of events that Diem Pham has given in describing this leasing agreement. The first arises from the evidence she gave about the important role real estate agents play in ensuring proper background checks were performed to meet the primary objective of having a tenant who could pay the rent. Here, Phuong Kim Vu had a potential tenant enquiry from Bac Le Vu, who attended with his partner. Phuong Kim Vu’s evidence is that her usual practise would be for both parties to go onto the lease. In this case, the lady declined, hence only Bac Le Vu’s name appeared. His background checks did not reveal a rental history that could be verified, or finances that could satisfy the ongoing rental obligation. In Phuong Kim Vu’s words, “the rental application could not be secured”.[41] That is, she did not recommend Bac Le Vu as a tenant. Despite this recommendation and the real potential of leasing to a tenant who could not pay, Diem Pham agreed to the lease. This contradicted Diem Pham’s evidence as to the primary quality a tenant needed: the ability to pay the rent. Second, in cross-examination, it was put to Diem Pham that she had been told by Phuong Kim Vu that Bac Le Vu was not a sound tenant. She denied this.[42] However, Phuong Kim Vu gave evidence that she had told Diem Pham not to take Bac Le Vu on.[43] In support of her version of events, Phuong Kim Vu gave evidence that she had Diem Pham write a specific additional instruction to acknowledge that she was being ordered to lease the property to Bac Le Vu against her recommendation. That instruction is in the following terms, “I accept to rent the house to Bac Le Vu and his family”.[44]
[41]SCB 9
[42]T154, L21-24
[43]T421, L5-8
[44]CB 178
63While there was much debate between the parties as to the fading of various witnesses memories, this contemporaneous note in the Landlord Instruction and Statement Form assumes some real importance, I consider.[45] It was not a usual part of Phuong Kim Vu’s practise. It supports her evidence that she had not recommended the tenant. This was on three bases: first, that there was only one person on the lease, especially given his partner and other adults would be residing there; second, there was no way to verify income via payslips, as the lady said she worked in cash; and, third, there was no way to conduct rental reference checks. Phuong Kim Vu’s evidence was emphatic that she did not recommend Bac Le Vu as a tenant, as he was unsecured.[46] She was pressed in cross examination that she could not accurately recall why she made Diem Pham sign the instruction, “I accept to rent the house to Bac Le Vu and his family”[47] and replied:
“No. I remember that one, because in that case – normally with the landlord instruction, I don’t put at the landlord, um, a (indistinct words) or rent free, whatever. But I remember because I said, ‘This one is – the rent too high compared to the document that he gave.’ That’s why I asked her to sign that. … .”[48]
[45]Fox at [31]
[46]T421, L5-9
[47]CB 178
[48]T428, L14-19
64Quite clearly, she was indicating her concerns to Diem Pham, which were not heeded. What was revealed in cross examination was that Phuong Kim Vu had a clear memory of the interaction with Diem Pham regarding the placing of the tenant Bac Le Vu into the Springvale property. That memory is supported by the note which is consistent with her having strong reservations about the proposed tenant and also consistent with Diem Pham knowing the tenant Bac Le Vu.
65A further inconsistency in Diem Pham’s evidence was revealed by Phuong Kim Vu’s evidence. It was put to Diem Pham that she did not know Bac Le Vu, but, rather, only knew his partner as someone who worked in a nail salon. This was contradicted by Phuong Kim Vu. She gave evidence that Diem Pham told her that she “knew them” (sic), meaning the family.[49] I consider that Phuong Kim Vu’s evidence is to be preferred on this point, because when Diem Pham was pressed about what she knew of the lady who accompanied Bac Le Vu, she could not recall her name. This was despite having admitted that this person had visited her at her shop on numerous occasions. She explained that, in Vietnamese culture, names are not so important. However, she could not recall either the Vietnamese name, nor the assumed English name, nor the surname. She retreated to saying that the lady looked “classy” as being the main identifying feature, in addition to the lady being a nail technician. This evidence was given in a wholly unconvincing way. In a further contradiction, she gave evidence that she did not know that Bac Le Vu was the partner of the nail technician.[50] This makes it even more inexplicable why Diem Pham would lease to him. It appeared that Diem Pham was making up explanations for why the property was rented to Bac Le Vu, when Phuong Kim Vu had recommended against it. This view is strengthened by the fact that Phuong Kim Vu gave evidence that she did not perceive the woman who accompanied Bac Le Vu as anything more than of a normal appearance, and made no comment to Diem Pham about her appearance. It begs the question of how Diem Pham knew the lady who accompanied Bac Le Vu was “classy”. While the evidence regarding the partner of Bac Le Vu being a nail technician was not in Phuong Kim Vu’s affidavit, it emerged in cross examination. This was said to demonstrate Phuong Kim’s Vu’s unreliability. I would not accept that characterisation of her evidence. While her affidavit is silent on the point, she quite clearly communicated the fact of knowing the lady worked as a nail technician in 2016 to Officer Marr.[51] She accepted that whatever she was asked about by police she gave all the information she could recall. At the time of writing her affidavit she could not remember this detail ( and it is unclear if she had access to Officer Marr’s notes) so she did not put it into her affidavit. This is an entirely plausible explanation from a witness who has only peripheral involvement in this matter and since the events some eight years ago has continued on in a busy real estate agents’ practise. To the extent that my impression of her evidence is a factor I record that I consider her to have been a straightforward witness who gave her evidence openly and with candour, admitting when she could not recall matters and conceding matters when contemporaneous records were shown to her, such as Officer Marr’s note. She was an impressive witness overall.
[49]T434. She repeated her evidence on this point when pressed again T438 L8-19
[50]T159, L17-21.
[51]T422 L25, CB 6252
66Armed with this knowledge, that Bac Le Vu’s partner was a nail technician only, Diem Pham asks the Court to accept that she assumed this was the nail technician who had approached her to lease the property and that she had directed her to Phuong Kim Vu. Even if that were to be accepted, it does not explain logically why Diem Pham did not abide by her real estate agent’s recommendation, particularly where the “classy” nail technician would not be going onto the lease but rather someone who Diem Pham did not know, namely Bac Le Vu, would be This is particularly so, having regard to two further factors. First, the only financial document Bac Le Vu showed to Phuong Kim Vu was a bank statement showing an amount of $7,131.08 in credit.[52] The rent per calendar month for the Springvale property was $2,900 and the bond was for that amount also. This meant that, on lease commencement, $5,800 was payable – being one month rent in advance and the bond. No payslip showing how much was coming in to Bac Le Vu’s account, and how often, was produced. If the account of Bac Le Vu was reduced by $5,800, it would leave Bac Le Vu, his wife and three children some $1,300 for the remainder of the month. This seems like a parlous position dependent on unknown cash earnings from his wife and uncertain earnings from Bac Le Vu himself. The landlord, in this position, then appears to have almost no idea as to whether the next month’s rent could be paid. Given Diem Pham’s evidence that the ability of a tenant to make rental payments was critical to ensure her own mortgage payments could be made, it seems entirely inconsistent that this tenant would be accepted by a landlord intent on financial gain.
[52]SCB 46
67In addition, the Harcourts Unity Landlord Instruction & Statement Form indicates Diem Pham directed that Bac Le Vu be given two weeks rent free. This is a further perplexing matter in accepting Diem Pham’s evidence. It is entirely unclear if the tenant requested this. Certainly, there is no evidence that Phuong Kim Vu requested this from Diem Pham. In the circumstances, it is unclear why a landlord would forego two weeks’ rent. It was suggested that Diem Pham simply wanted to give the tenants “a go” and if they failed to pay, they could be evicted. It was put that Phuong Kim Vu had experienced landlords with similar attitudes so this was not unusual.[53] This, to me, seems illogical, given the significant cost in time and money associated with turning over rental clients. Eviction is a process during which late-paying tenants remain in occupation while not paying rent. This deprives the landlord of rent. The cost of new advertising and leasing fees is then incurred. Further, new tenants may not immediately take up the property, and, once again, the property generates no rental income. Throughout all of this, the landlord has a mortgage over the property, which demands payment. Why a landlord would blithely consider this a prudent financial course is completely unclear and inconsistent with Diem Pham’s own evidence of the importance of having tenants who can pay.
[53]T691 L7
68Against this the Applicant submitted that Phuong Kim Vu gave evidence that, after being told of the police raid by Phuong Kim Vu, Diem Pham was upset and shocked.[54] It was submitted that this was consistent with Diem Pham being unknowing of the CCH at the Springvale property. However, it does not affect the fact that Diem Pham’s evidence as to the leasing of the property was unreliable and could not be accepted given its inconsistency with the evidence of Phuong Kim Vu, the contemporaneous records and the financial illogicality of embarking on the course she did.
[54]T404 L4
69It was further submitted that Phoung Kim Vu accepted that it was sometimes the case that despite her recommendation a landlord could agree to lease to a tenant or to grant a rent free period.[55] In this context, it was submitted, there was nothing unusual in the lease to Bac Le Vu. I do not accept that submission given the inconsistences in the evidence regarding the overall tenanting arrangement, particularly as to the highly uncertain financial situation of Bac Le Vu and the professed importance of having a paying tenant that Diem Pham gave evidence about. Further, it goes against Diem Pham’s earlier evidence that all residential properties were managed at arms-length and she did not lease to people she knew.
[55]T406-407.
70It was suggested that Phuong Kim Vu accepted that in accordance with the exclusive management authority she signed to lease the Springvale property, Harcourts Unity deducted advertising fees, leasing and management fees.[56] It was suggested that these fees and particularly the advertising fees were charged as this was part of a normal leasing arrangement. Further it was submitted that it was incongruous that the advertising fee was charged in circumstances that the Director suggested existed, namely that Diem Pham knew Bac Le Vu. I accept that it is a difficulty for the respondent’s case. It is the position however that such fees are all tax deductible and are for only small amounts. For example they are dwarfed by the decision to allow two weeks rent free. I consider this is a minor point against the respondent’s case and is overwhelmed by the number of inconsistencies in the leasing arrangement touched on above.
[56]T409
71When examined overall, Diem Pham’s decision-making in leasing to Bac Le Vu does not make logical sense. This supports a finding that Phuong Kim Vu’s evidence is to be preferred. The evidence suggests that Diem Pham’s evidence as to the lease of the Springvale property is unreliable. Moreover, it supports, strongly, a finding that her evidence in respect of the Springvale property was given in an evasive, untruthful manner, designed to conceal the truth.

The Archies Creek properties
Is the evidence of Diem Pham reliable in respect of the Archies Creek properties?
72Turning next to the AC properties.
73In her first affidavit, Diem Pham had deposed to how it was HTD came to purchase the AC properties.[57] However, after the purchase in 2013, it became apparent that HTD could not raise the finances to complete the purchase. As a result, Diem Pham told Manh Cuong Nguyen and he introduced her to Jason Wang and Tuan Nguyen, who had an interest in property development. Ultimately, Jason Wang, Tuan Nguyen and HTD entered into an arrangement where a joint entity, GMR Pty Ltd, would purchase the AC properties. Jason Wang and Tuan Nguyen[58] would have a controlling interest of 51 per cent and HTD would have a 49 per cent stake. This proposal was suitable to the vendors and GMR became the purchaser of the AC properties settling in early 2014. The plan that GMR had for the AC properties was to develop them into a tourist destination.
[57]CB 273 at paragraph [55]
[58]Through a corporate entity GMR Australia Pty Ltd CB 2036
Was the lease of the Archies Creek properties at arm’s length?
74None of the above is contentious. Of more relevance was the fact that GMR entered into a lease in respect of 93 Archies Creek with LLL in or around 1 July 2014.[59] The circumstances of that lease were a matter of some dispute between the parties. The reason for the lease is non-contentious: Jason Wang gave evidence that while work on the development plans for the AC properties went on, he and Diem Pham decided that useful income could be obtained by leasing the AC properties.[60] On Diem Pham’s evidence, she introduced Lam Son Nguyen to Jason Wang, and thereafter Jason Wang, as the controlling interest of GMR over the AC properties, took over the decision-making as to whether or not to grant the lease.[61] Ultimately, that lease was granted through a real estate agent. The respondent contends that Diem Pham’s evidence sought to downplay her relationship with Lam Son Nguyen. This was said to reveal an unreliability in her evidence and to have been done so as to minimise the relationship between her and the person in control of the AC properties at the time of the raid when the CCH was discovered at the factory lot.
[59]CB 280 at paragraph [81]
[60]CB 301 Affidavit of Pham at [188]
[61]Ibid CB 301 Affidavit of Pham at [189]
75Starting with the affidavit evidence that Diem Pham gave in respect of her knowledge of Lam Son Nguyen. She deposed in her first affidavit at paragraph [186], “I have known Lam Son Nguyen since around 1996 as a member of the Vietnamese community in Springvale.”[62] She went on to depose that Manh Cuong Nguyen and Lam Son Nguyen knew each other as friends and at some point Lam Son Nguyen had purchased the plastic bag manufacturing business, LLL, from Manh Cuong Nguyen.[63] She deposed that thereafter she would talk to Lam Son Nguyen by phone on social occasions. She deposed that she heard, during a visit to his factory in late 2014, that his lease was expiring, hence she became aware that he needed another set of premises out of which to operate the business.[64] She deposed that, “other than as set out above I do not know LLL, its directors, shareholders or Lam Son Nguyen in any other way.”[65]
[62]CB 300
[63]CB 300 at paragraph [187]
[64]CB 301 at [188]
[65] CB 303 at [198]
76That evidence came under attack. First, during the course of cross-examination, Diem Pham revealed that some 20 years prior, she had been in a personal relationship with Lam Son Nguyen.[66] When pressed as to why this was not disclosed, she gave two reasons: first, that it was personal information that she did not want to disclose, and secondly, she did not want Manh Cuong Nguyen to know about this relationship.[67] It was pointed out to her that she had put into her affidavit many details of a personal nature about Manh Cuong Nguyen.[68] This seemed to directly contradict the evidence she had given about why no personal details about her relationship with Lam Son Nguyen were in her affidavit. Secondly, it was pointed out that she had broken up with Manh Cuong Nguyen in 2019. As her affidavit was only sworn in 2021, it was submitted there was no reason for Manh Cuong Nguyen to know that she had deposed in those personal terms about her past relationship with Lam Son Nguyen. A further reason which works against Diem Pham’s evidence is the fact that after breaking up with Manh Cuong Nguyen, she gave evidence that both Lam Son Nguyen and Manh Cuong Nguyen were friends who would often lunch together. It seems highly implausible in that circumstance that Manh Cuong Nguyen did not know about the relationship that she had with Lam Son Nguyen. This is particularly so given that Diem Pham deposed that in 2014 she had actually been at Lam Son Nguyen’s factory when he told her that his lease was expiring. This suggests some ongoing personal relationship between the two of them. In all of those circumstances, her evidence seems highly unlikely as to why she did not detail her relationship with Lam Son Nguyen. This is one ground on which I find her evidence as to her relationship with Lam Son Nguyen unreliable.
[66]T161, L23
[67]T162, L16
[68]CB 274 at paragraph [60]
77In addition Diem Pham ultimately did concede that she had a close relationship with Lam Son Nguyen in about 2016 and 2017.[69] This concession only came after cross-examination in which she accepted that at various times in 2016 and 2017, vehicles owned by her daughter and also her company, Visual Image Pty Ltd, had received speeding fines while Lam Son Nguyen was driving the vehicles.[70] She was also taken to phone calls in April 2017 between her and Lam Son Nguyen, immediately prior to the raids on the AC properties. Some of those phone calls went for well over an hour and occurred on several occasions. In the face of those matters, Diem Pham made the concession that she had a close relationship with Lam Son Nguyen. She was then taken back and asked why she did not reveal this relationship in her affidavit material, but instead sought to leave the Court with the impression that she knew Lam Son Nguyen simply as a member of the Vietnamese community in Springvale, as set out above. When pressed on this she retreated to saying that she was on a lot of medication and again repeated that she did not want to talk about private matters which Manh Cuong Nguyen would learn about. Dealing with these two points. As to medication, I find that nowhere in any of her six affidavits has she set out the details of her medications which she claims have affected her memory. Her evidence given in cross-examination appears to be the first time that she has mentioned matters of medication affecting her memory. Her affidavit material does mention an episode in 2019 of taking medication for depression but does not then descend to describing its effects.[71] This heightened my sense that she was seeking to find excuses to explain why she had not adequately disclosed her relationship with Lam Son Nguyen. I accept that there is a record in the medical notes in November 2014 of memory difficulties.[72] This is not contemporaneous with the alleged memory difficulties afflicting her affidavit evidence several years later. However here she has deposed categorically to her knowledge of Lam Son Nguyen and it has been shown to be contradicted. Second, as to not revealing personal matters in her affidavit material, I have set out above the fact that she spent some time in her affidavits detailing the personal relationship she had with Manh Cuong Nguyen and how her relationship with him functioned. She had early on in the investigation of these matters mentioned to Detective Lazar that Lam Son Nguyen was her boyfriend at one stage.[73] Why she did not descend to that level of detail in her affidavit abosut Lam Son Nguyen is unclear.

[69]T199, L15‑17
[70]T165 and T210
[71]CB 286 at [109]
[72]T259 L17-21
[73]CB 6267
78Overall, her evidence as to her relationship with Lam Son Nguyen can only be viewed as being incomplete and unreliable. Her manner of giving evidence at times was clearly evasive as is demonstrated by her recourse to suggesting medication caused a problem with her recall about her relationship with Lam Son Nguyen.
79While it cannot be said that concealing the full nature of her relationship with Lam Son Nguyen leads to an inference that she knew or suspected that cannabis cultivation was occurring on the AC properties, it is at this stage sufficient to note that this is a further example of unreliability in Diem Pham’s evidence.
80Evidence was also given by Van Hoa Vu. To recap, he was the crop sitter/gardener at the AC properties. He was charged and pleaded guilty to the cultivation of narcotic plants in not less than a commercial quantity. He was subpoenaed to give evidence and only provided an affidavit late in the proceeding.[74] In that affidavit he exhibited a record of interview that he had participated in on 7 April 2017. Ultimately it was accepted by the respondent that his evidence was almost of no assistance.[75] At best it was submitted that his evidence could be used to demonstrate that he attended at Diem Pham’s shop in Springvale and asked her if she was happy with the grass cutting at the AC properties.[76] I accept that given the obvious inconsistencies in his evidence given in cross examination very little to no weight can be attached to his evidence. I disregard it as demonstrating any link between Diem Pham and the CCH at the AC properties.
[74]SCB 140 Affidavit of Van Hoa Vu 14 February 2024
[75]T636 L7
[76]T636 L21
Did LLL sublease the factory lot at 93 Archies Creek to Van Hoa Vu?
81The Applicants submitted that Diem Pham was further distanced from the AC properties by the fact that LLL subcontracted its lease of the factory lot at 93 Archies Creek to Van Hoa Vu. This was contested by the respondent.[77] The evidence of the sublease arrangement is said to arise from three sources. The first is in the Affidavit of officer Lazar[78] that contains a hearsay statement from Lam Son Nguyen that he subleased to Van Hoa Vu; the second is a hearsay statement attributed to Diem Pham[79] in the Affidavit of officer Lazar and the third is in the sentencing remarks in respect of Van Hoa Vu where he is referred to as a subtenant. It was submitted that there was no evidence to displace these matters and it ought be concluded that there was a sublease from Lam Son Nguyen to Van Hoa Vu of which Diem Pham had no knowledge and which further distanced her from the CCH at the AC properties. Bearing in mind that Lam Son Nguyen was a friend, at times a close friend of Diem Pham, it could be expected that he would be called to give evidence on this point. The fact that he was not called to give direct evidence on this point is curious. It leads to the inference that his direct evidence would not have assisted the Applicant.[80] Balancing those matters, I find that the evidence sought to be relied on, through the affidavits of officer Lazar, is of little weight. This is especially so given the unreliability of Diem Pham’s evidence. As to the comments in the sentencing remarks I do not consider them to be evidence and I put them aside.[81]
[77]T42 L26-29
[78] CB 6624
[79]CB 6267; T42 - 43
[80]Jones v Dunkel [1959] 101 CLR 298
[81]T207 L 12 and 657 L21-2
82Against this is the evidence of Jason Wang. He had no knowledge of the sub lease. It is telling that on Lam Son Nguyen’s version of events he had contracted with GMR by dealing with Jason Wang. Then, without any notification to the landlord, Lam Son Nguyen had decided on a sublease to Van Hoa Vu. This seems inconsistent with standard business practise. Further Lam Son Nguyen’s experience in respect of this property was that Jason Wang had a keen interest in the leasing of the property and had also engaged lawyers and a managing real estate agent.[82] These steps would have revealed to Lam Son Nguyen that Jason Wang was operating consistent with standard business practice. In this circumstance a sublease made without knowledge of the landlord, to a sub tenant they did not know or have any way to verify, seems highly unlikely and against the apparent logic of events. I do not accept that a sublease was entered into.
[82]CB 2040 – 2041 Affidavit of Jason Wang sworn 23 August 2021 at [12-13]
83Overall I do not find the lease to Lam Son Nguyen was at arm’s length from Diem Pham. I further find there was no sublease.
Should the Archies Creek properties be treated as a whole unit or separate lots?
84A point of contention between the parties was whether the entirety of 83 and 93 Archies Creek should be considered tainted property. This turns on consideration of, first, the treatment of subdivided properties under the Act and, second, which of the properties should be regarded as having the requisite connection with the cultivation of a commercial quantity of cannabis.
85Turning to the first question, it is common ground that the properties are divided into lots, with 83 Archies Creek consisting of four lots and 93 Archies Creek consisting of two lots. It is also agreed that a cannabis crop was grown only on lot 1, also identified as volume 03067, folio 273, on 93 Archies Creek (“the factory lot”), and that this is therefore tainted property. The respondent submits that 83 Archie’s Creek and 93 Archie’s Creek should be viewed as a ‘matter of practical reality’, that is, by historical and planned usage, which is by street address and that as such, all titles at both 83 and 93 Archies Creek are tainted.[83] The respondent submits this view is supported by the contract of sale,[84] which refers to them as 83 and 93 Archies Creek and by the manner in which rates, charges and land tax have been levied.[85] As for the planned usage, Jason Wang deposed that 83 Archies Creek had situated on it a function centre, lake and car park, which he and Diem Pham, along with other investors, planned to develop into a restaurant, function centre and accommodation centre.[86]
[83]T639
[84]CB700-1
[85]CB800-802
[86]CB2034,2047
86In contrast the Applicant submits that the properties should be considered as individual lots or titles, as they are described on the plan of subdivision.[87] On this submission, while it continues to be accepted that the factory lot, being Certificate of Title 3067, Folio 273 on 93 Archies Creek is tainted, the other lot, being Certificate of Title 10304, Folio 799, is not.
[87]T651-5
87I accept the Applicant’s position on this issue. While it is true all of the lots on 83 and 93 Archies Creek were sold together, this involved the sale of six separate Certificates of Title.[88] The land has been subdivided and are separate properties at law.[89] The historical and planned uses are not relevant, except as they relate to whether the properties were used, or intended to be used, in the commercial cultivation of cannabis. To this extent it is relevant that out of all the lots across both 83 and 93 Archies Creek, only the factory lot was leased and that was to a known acquaintance of Diem Pham. Therefore, each lot must be considered separately as to whether the alleged use meets the definition of tainted property.
[88]CB761-775
[89]CB787
Definition and scope of ‘tainted property’
88Under section 3 of the Act, the meaning of tainted property includes, relevantly, property that “was used, or was intended to be used, in or in connection with, the commission of one of more Schedule 2 offences.”
89The Court of Appeal in Chalmers v R (“Chalmers”)[90] considered the issue of the boundaries of the term “tainted property” in respect of the Act. In Chalmers the accused had killed his partner at an apartment. Chalmers contended her death resulted from an inadvertent act. He was convicted by jury verdict of murder. The Judge made an order of forfeiture over Chalmer’s interest in the apartment where the deceased was killed. Chalmers appealed that finding, contending that simply because the murder occurred at the apartment it did not fall within the definition of being tainted property because the apartment was not “used or intended to be used in connection…” with the murder.
[90](2011) 37 VR 464; [2011] VSCA 436 (“Chalmers”)
90After an examination of intermediate appellate authorities in various states the Court of Appeal adopted the following propositions at [77]:
“1. The word “used” should be given its ordinary meaning of “employed, or made use of, for a particular end or purpose”.
2. The statutory phrase is of wide scope. The inclusion of the words “in connection with” was plainly intended to extend the scope of the definition of “tainted property” beyond circumstances where the property could be said to have been “used in the commission of” the offence.
3. Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree. It is not necessary for it to be established that there was a “substantial” connection, or that the crime could not have been committed without using the property.
4. The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the court’s discretion whether or not to order forfeiture of the property.”
91The Court went on to observe at [89]-[91] that:
“At one end of the spectrum are cases where the property is deployed in an instrumental sense to commit the offence. An obvious example is the weapon that is used to inflict an injury. Land can be used to cause death or injury, such as where a domestic pool is used to drown the victim. Another example is where a beam in a ceiling of a house is used to support a rope for the purpose of hanging the victim. A further example is where the victim is thrown off a second floor balcony. These are examples of cases where an attribute or feature of the property is actively used in the commission of the offence.
At the other end of the spectrum are cases where the property is merely the passive location at which the offence is committed. An example is where a discussion takes place in the offender’s home which constitutes a conspiracy to commit an offence at another location. Another example is where, during dinner in the family home, a domestic dispute erupts spontaneously which leads to one person reaching across the table and assaulting another person. These are examples of cases where an offence is committed at the property (the home) but there is no relevant connection between the use of the property and the commission of the offence.
There will, of course, be cases along this spectrum where the question whether the requisite connection exists (between the use of the property and the commission of the offence) will be a matter of difficulty. Those cases will require a close examination of the nature of the property, its precise use, the nature of the offence that was committed and the manner, if any, in which the property was used in connection with the commission of the offence. The more passive the use of the property and the more incidental its role, the less likely it is that the requisite connection will be found to exist.”
92The facts of the case required consideration of whether an apartment, that was the location of the murder by an applicant of his de facto partner, was tainted property. In a unanimous decision, their Honours found that the premeditated use of the apartment was not sufficient to satisfy the definition of “tainted property” as the applicant “did not employ or utilise the property in any relevant sense … there was nothing about the property itself which facilitated or furthered the commission of the offence.”[91]
[91]Chalmers 484 at [96].
93In Director of Public Prosecutions v George (“George”),[92] the South Australian Court of Appeal considered the meaning and scope of the term ”instrument of an offence” under the s7 of the Criminal Assets Confiscation Act 2005 (SA) (“CAC Act”). The respondent in the case had pled guilty to growing cannabis in a shed in the rear of his property, on which his house was also situated. A Restraining Order was subsequently granted covering his property – being both the shed where the cannabis was grown and the main house. Subsequently George applied to revoke the restraining order. The Court considered the relevant legislation:
“S7- Meaning of proceeds and instrument of an offence
(1) For the purposes of this ACT , the following rules apply when determining whether property is proceeds or an instrument of an offence:
……. (b) property is an “instrument of an offence if it is –
(i) used in, or in connection with, the commission of an offence; or
(ii) intended to be used in, or in connection with, the commission of an offence.”
[92][2008] SASC 330 (“George”)

94It can be seen that (1)(b)(i) and (ii) are almost a facsimile of the terminology used in s36V of the Act.
S36V Determination of application for exclusion from civil forfeiture restraining order
(1) On an application under section 36U, the Supreme Court or the County Court, as the case requires, may make an order—
(b)     excluding the applicant’s interest in the property from the operation of the civil forfeiture restraining order if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that—
(i)     the applicant was not, in any way, involved in the commission of any relevant Schedule 2 offence; and
(ii)     where the applicant acquired the interest before the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant did not know that the property—
(A)     would be, or was intended to be, used in, or in connection with, the commission of any of those offences; or
(B)     was likely to be, or intended to be, used in, or in connection with, the future commission of any of those offences;

95Similarly the phrase “…used in or in connection with the commission of an offence” is the same as that used in the definition of the term “tainted property” in the Act.
96By reason of these statutory similarities I consider the decision in George to have applicability to the way I must interpret s36V of the Act.
97Doyle CJ held the definition of the term was a wide one and that:
“… The composite expression involves practical considerations and matters of degree. There is no point trying to define the statutory expression, as each case will turn on its own facts: Taylor v Attorney-General (SA) (1991) 55 SASR 462 at 471, Debelle J.
However, in considering the meaning of the statutory expression, it is relevant to bear in mind that the composite expression that has been used is one that has often been said to have a wide reach.
Moreover, the purpose of the CAC Act and the nature of its provisions suggest that the definition of “instrument” was intended to have a wide rather than a narrow reach. On the other hand, as Mr Wells submits, a conclusion that property is an instrument of an offence has serious adverse consequences for the owner. That is a matter to be borne in mind in determining the application of the statutory expression in the present context: see Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414; [2007] FCAFC 203 at [105]-[113].
…
As a matter of ordinary language, and bearing in mind that the word defined is “instrument”, I consider that the definition refers to a use of property that facilitates, assists or contributes to the commission of an offence. That is a starting point, not a conclusion. The use of the property must be sufficiently significant (I realise that this is question begging) to warrant a conclusion (especially when the property is the place where the offence is committed) that the property is used in connection with the commission of the offence. This invites attention to the role that the property plays in the commission of the offence, to the extent to which the property is so used, and to how much of the property, or what part of it, is used. ...”[93]
[93]Director of Public Prosecutions v George (“George”) [2008] SASC 330 [57]-[59],[65]

98Applying those principles, Doyle CJ then went on to find the requisite connection existed and denied George’s application. As a result both the shed and the house were forfeited.
99I consider that George supports the principles enunciated in Chalmers.
Which lots on 83 and 93 Archies Creek are tainted property?
100The applicant rightly concedes that the factory lot on 93 Archies Creek, being Certificate of Title 03067 Folio 273, having been the site on which the cannabis was cultivated, is tainted property.
101The remaining Certificate of Title 10304, folio 799 on 93 Archies Creek however is in a different category. Applying the principles of Chalmers, I start with an assessment of the use made of this Certificate of Title, volume and folio. When considering in what way was it employed, or made use of, and for what particular end or purpose there was no evidence that this lot was in any way used save for being transited across. It was not the site for cultivation and it was not used to dump any waste emanating from the factory lot. No equipment was stored on it related to the CCH. It was located to the rear of the factory lot and so it played no role in screening the factory lot from the road or concealing its purpose. Accepting that there does not have to be a substantial connection between the land and the crime, but rather simply a connection, I do not find that there is such a connection between Certificate of Title volume 10304, Folio 799 and the crime.
102As to the parcel of land at 83 Archies Creek. The first area of dispute arose over certificate of title 8133, folio 558. On this piece of land it was alleged that Van Hoa Vu used the reception lot at 83 Archie’s Creek as a ‘bedroom or base’. A bed had been laid on the floor and there were signs a person slept and ate there. Just outside that room a set of car keys were on the reception desk counter. They operated a van which was used to collect and transport cannabis waste from the factory lot at 93 Archies Creek for disposal by De Van Nguyen. The respondent submitted this constituted use of the entirety of the property ‘as a means of exiting the larger complex by van used to dispose of cannabis and hydroponic waste.’[94] The issue of whether Van Hoa Vu slept at the reception lot was the subject of some argument, however I consider this to be of little moment in making my determination as it does not substantially affect the ‘use’ of the property.
[94]CB258
103Accepting for a moment that Van Hoa Vu slept at the reception centre overnight on occasion and then drove his van to the factory lot to assist in the cultivation of the CCH, I do not consider that this is sufficient to constitute use of 83 Archies Creek in the commission of the crime. I consider that attention must be focused on what use the property is put to rather than on the role Van Hoa Vu played at a separate premises. This is to follow what Doyle CJ said is to examine “….the role that the property plays in the commission of the offence.” Focusing then on the role that the property played it can be seen that it operates as no more than as a place where Van Hoa Vu slept. I do not consider that the use of the property at 83 Archies Creek is “sufficiently significant” to bring it within the requirements of the section. This is different to the situation in George. In that case the shed used to grow the cannabis was on the same lot as the house at the front. Also the electricity and water for the shed and the land were the same. In that setting the shed, the land and the house at the front of the land were all forfeited. Here these factors are not present. The crime was committed on a different property, separately supplied with electricity and water.

Evidence of Thong Le
[131]T305 L1-4
130The evidence of Thong Le directly contradicts that of both Diem Pham and Hiep Phu Kenny Pham. In his Affidavit dated 11 October 2023, Thong Le deposed to the accuracy of his statement regarding the Mentone Property to Victoria Police, made on 17 September 2019.[132] In that statement, Thong Le stated:
“In early February 2017, the landlord of this property, Diem PHAM made enquiries with our office in relation to leasing out her property at 102, Beach Road, Mentone. She told me that she had already found a tenant and that she just required us to finalise the lease for her…
I agreed to manage the property for her. In relation to the rental application process that we usually take when determining which tenant is going to lease the property, I did not have to do this process with this property because the landlord had already picked a tenant without our assistance. This meant that we did not need to conduct any background checks on the tenant, being Van Thuan LE. All we required was some identification.”[133]
[132]CB6125
[133]CB6127-8 paras [3]-[4]

131Thong Le further stated that on 28 February 2017, Van Thuan Le attended iSell to sign the lease paperwork, at which time Thong Le took a copy of his passport. The bond amount was $3,000 with rent of $3,000 per month.[134]
[134]CB6168 paras [5],[8]
132In his viva voce evidence, Thong Le broadly confirmed his 2019 statement to police. Generally, he was forthcoming and seemed to make efforts to recall the events in questions to the best of his ability. He could not recall if Hiep Phu Kenny Pham asked him to contact Diem Pham about leasing her property.[135] However, he also made additions to his 2019 police statement, referred to unproduced documents and produced hand-written notes, all of which raises doubts about his reliability as a witness.
[135]T541
133For instance, Thong Le stated that he had informed Diem Pham that police had found drugs at the Mentone property via email, but had not produced such an email either to police or for these proceedings.[136] More significantly, for the first time in Court, Thong Le stated that Diem Pham had received the bond and first month’s rent directly from Van Thuan Le. There was no record of this in his 2019 police statement or affidavit. Nor was there record of him having produced documents that would support this claim, such as emails or bank statements.[137] He could not recall if he had ever produced such documents and accepted he had left this information out of his statement to police.[138] Following sustained questioning on how he had refreshed his memory for the 2019 police statement, he stated that he had made a hand written note at the time the landlord authority and lease had been signed in February and March 2017.[139] He had not previously shown the note to anyone, including police.[140] The note was called for and tendered.[141] He was extensively cross-examined on it. While the note supports Thong Le’s account, I cannot accept that it is a contemporaneous record of events. This is because, if it was kept on a file related to the Mentone property as claimed, it cannot be adequately explained why it was not provided to police or earlier in the proceeding.
[136]T538 L28-31, T539
[137]T549-553
[138]T556-7
[139]T559
[140]T560
[141]T569, SCB274, Ex R12
134On a related point, generally, Thong Le could not recall which documents he had provided to police. I accept the affidavit evidence of Detective Senior Constable Christos Pappas, who was a corroborator in the investigation involving the Mentone property, which indicates Thong Le provided only copies of the residential tenancy agreement and Van Thuan Le’s passport.[142]
[142]CB5889
135For the above reasons, while I do not consider Thong Le deliberately sought to mislead the Court, I am not satisfied his evidence is entirely reliable. Nonetheless, I accept elements of his evidence, in particular that Diem Pham found Van Thuan Le for the Mentone property. I make this finding for two reasons. First, the documentary evidence supports this. In particular, the lease with Van Tuan Le was signed on 28 February 2017,[143] while the exclusive authority was signed after that date on 1 March 2017. This supports Thong Le’s version of events because I consider a real estate agent would not sign a lease with a tenant without even having obtained formal authority from the landlord, unless they had obtained approval and direction first. It indicates that Diem Pham directed Thong Le to sign a lease with Van Thuan Le without undertaking the usual checks. Thong Le’s account is further corroborated by the tax invoice from iSell in relation to the Mentone property covering the period 1 July 2016 and 30 June 2017 which does not include an advertising fee.[144] This supports a finding that as a tenant was already secured, no advertising fee was required.
[143]CB6130-6134
[144]CB 1635
136Second, Thong Le does not have a personal interest in claiming Diem Pham found Van Thuan Le as a tenant. Thong Le struck me as a person who would be diligent and pragmatic in his work. I accept that, even in the context of having managed approximately 250 properties,[145] it was unusual that a landlord would select a tenant, meaning this transaction would stick in his mind. Despite sustained cross examination on this point, he was firm in maintaining that Diem Pham found the tenant[146] and that he charged her half the letting fee because iSell were not required to advertise. [147] He was also consistent in stating he did not perform the usual checks in regards to Van Thuan Le’s rental history or income.
[145]T536 L7-8
[146]T536 L6-9, 542, 578,585
[147]T549, 588
137An email from Thong Le to Diem Pham which Hiep Phu Kenny Pham is carbon copied into does support the assertion that Hiep Phu Kenny Pham introduced Diem Pham to Thong Le. However, Thong Le conceded that, though he could not recall if this occurred, it could have been the case.[148] Regardless, merely because Hiep Phu Kenny Pham introduced Diem Pham to Thong Le, it does not follow that Diem Pham did not direct Thong Le to sign a lease with Van Thuan Le.
[148]T576 L16-18
138It will be apparent from the above that I do not accept all of the evidence of Hiep Phu Kenny Pham. It can be accepted that he did make the initial contact between Diem Pham and iSell Group. In that position he was the one to introduce Diem Pham to Thong Le. This makes logical sense as Thong Le was the agent responsible for rentals at iSell Group. I reject Hiep Phu Kenny Pham’s evidence that Van Tuan Le simply walked into the iSell Group agency looking for a rental property. I consider it highly improbable that Van Tuan Le happened to walk into iSell at exactly the time Hiep Phu Kenny Pham had been given the Mentone property to lease and he just happened to be in the foyer. Rather it is much more likely that Van Thuan Le was sent there by Diem Pham as the tenant she wished to be placed into the Mentone property. I consider this the much more likely scenario given there was no advertising in respect of the property so it was unclear it was on the market and that in fact the lease was signed on 27 February 2017 without the iSell agency even having a formalised authority with Diem Pham at this stage. The fact that Van Thuan Le was also the tenant placed into the property by Diem Pham is also supported by the fact that there were no background checks on him, such as his ability to pay rent or his rental history. None of those materials were produced by iSell Group and this fact is supported by the evidence of Thong Le who stated no background checks were needed as Diem Pham had found the tenant.[149] Lastly, I consider that Hiep Phu Kenny Pham‘s evidence is unlikely to be as accurate as Thong Le’s because at best he was only peripherally involved in these events. Even on his version his only involvement was to introduce Diem Pham and Van Tuan Le to Thong Le. Thereafter he had no involvement in preparing the documents, executing the lease, chasing the rent up or being involved with the police. The fact that Thong Le was more closely involved and in fact had to prepare a statement contemporaneous with these events is much more likely to have led to an accurate recollection than Hiep Phu Kenny Pham who only had to recall these matters on one occasion some seven years later.
[149]Statement of Thong Le at CB 6127
139I therefore find that Diem Pham found Van Thuan Le as a tenant and directed Thong Le to enter into a lease with him. I consider this to be significant for two reasons. First, because it concerns the lease that was in place when the cannabis crop was located in the Mentone property. Second, because it directly contradicts her evidence that virtually all of her properties, including the Mentone property, were leased through real estate agents in an arm’s-length transaction. I record my findings that Diem Pham’s evidence as to the leasing arrangements of the Mentone property was unreliable and inconsistent. I do not accept it as accurate.

Overall finding on whether Diem Pham can discharge the onus of proof
140Stepping back to consider my findings in relation to the individual properties and the evidence of Diem Pham in total. I find that she was an unreliable, inconsistent and at times evasive witness for the reasons I have set out above in relation to each of the properties and her manner of giving evidence.
141Taking that finding and applying it to the test in respect of the properties which is it is accepted are tainted properties. I have to consider the maters in the sequence accepted by the parties as emanating from the decision in Grillo.[150] In order, this requires a consideration of whether the Pham entities:
(a) Did not know of and were not wilfully blind:
(i)To the cultivation of cannabis; or
(ii)As to there being a significant or real chance that the cannabis was a commercial quantity; or
(iii)As to there being a significant or real chance that the cannabis was being cultivated for sale;
[150]Grillo at [69]

(b) If no part of (a) applies they were nevertheless not involved in the commission of the offence of cultivation of commercial quantity of cannabis.
142An analysis of all the evidence leads me to find that Diem Pham cannot discharge her burden as required by s36V. This is because she cannot demonstrate on the balance of probabilities that she did not know or was not wilfully blind to the cultivation of cannabis at the properties where the CCH were located. I do not accept that this means I have to make a finding that she was so involved on the balance of probabilities. This is because s36V makes clear that the onus rests on the applicant to prove on the balance of probabilities that she was not involved, and was not wilfully blind to the commission of the offence.
143While it was said that this result flows from a finding that the Applicant’s evidence was unreliable, I consider that all of the evidence needs to be assessed. As I have set out above, in dealing with each of the properties there is evidence from other sources which stand in the way of a finding that the applicant can discharge her burden. Starting with the Springvale property, there is the evidence of Phuong Kim Vu and the notation on the leasing instruction which suggests that the tenant Bac Le Vu was known to Diem Pham and was purposely selected to go into the property. Bac Le Vu was the tenant at the time of the raid and discovery of the CCH.
144Then as to the AC properties. It is uncontroverted that Diem Pham introduced Lam Son Nguyen to Jason Wang and that subsequently Lam Son Nguyen leased the factory lot at 93 Archies Creek through his company LLL. I have found that there was no sublease. As such it was that company that was tenanting the premises at the time of the raid and discovery of the CCH.
145As to the Mentone property. I have found after an acceptance of the evidence of Thong Le that Diem Pham purposely selected Van Thuan Le to go into the property. Van Thuan Le was the tenant at the time of the raid and discovery of the CCH.
146These matters tell independently against accepting the submission that Diem Pham and the applicants can discharge their onus. In Henderson v Queensland (“Henderson”),[151] the Chief Justice stated, in respect of similar Queensland legislation, “The placement of the burden of proof is uncompromising and unable to be ameliorated by any “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct”.[152] It was put more bluntly later on by Her Honour Justice Bell when she stated the task before the applicant: “Mr Henderson was required to prove a negative”.[153] Applying that principle here, it is for the Pham applicants to prove that they were not involved in the commission of the offence, including that they did not turn a blind eye to that offending.
[151][2014] HCA 52 (“Henderson”)
[152]Henderson at [15] citing Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) ALR 449 at 450
[153]Ibid at [33]
147The applicants submitted that it could not be demonstrated that they knew of or were wilfully blind to the essential elements of the offence. It was submitted that at worst, all that could be shown was that Diem Pham had allocated tenants to each of the properties. Specifically, for example it might be said that there was no evidence that Diem Pham saw any cannabis growing at any of the premises, or had reason to believe that anything untoward was occurring inside the properties. There was no evidence that she had visited any of the properties personally after they had been leased.
148Given all parties accepted that the principles governing this point were correctly expressed by Nettle JA in Le it is useful to restate what his Honour held:[154]
“First for the purposes of the law relating to involvement in a criminal offence, knowledge includes wilful blindness and wilful blindness’ includes the actions of a person who deliberately refrains from making inquiries because he or she prefers not to have the result, or who otherwise wilfully shuts his or her eyes for fear that they may learn the truth.”
[154]Le at [23] Nettle JA citing with approval from Periera v DPP (1988) 63 ALR 1

149Here I consider the combination of suspicious circumstances and failures to make enquires lead to a finding that the applicants cannot discharge their onus.[155] The matters which lead to this finding begin with the unreliable and evasive evidence of Diem Pham, as I have set out above. Then there is the evidence of the two real estate agents, Phuong Kim Vu and Thong Le, which I have accepted. It suggests that tenants with no good financial records, or rental history were placed into properties against what I consider to be usual rental and financial practice. Why a commercial landlord would subject themselves to such risk raises serious suspicion about the ultimate motive of placing them into the properties. There is no evidence that Diem Pham made any enquiries as to the ability of the tenants of the Springvale and Mentone properties to pay their rent. This failure to make enquiry I categorise as wilful blindness to the cultivation of cannabis in a commercial quantity for sale.
[155]Ibid
150The independent matters I have just referred to in combination with my findings as to the unreliable, inconsistent and evasive evidence of Diem Pham lead me to find that I cannot accept that the Pham applicants did not know and were not wilfully blind to the cultivation of cannabis in amounts which were of commercial quantity for sale. To that point it “…is fundamental to bear in mind that the respondent is not required to prove knowing involvement by the applicant, rather the onus is on the applicant to prove otherwise.”[156] She has not so proven.
[156]Pham v DPP [2017] VSC 261 at [79]
151To summarise my findings:
(a) Diem Pham is unable to discharge her onus in respect of that property which is admitted to be tainted property being:
(i)The Springvale property;
(ii)The Mentone property;
(iii)The factory lot being Certificate of Title 03067 Folio 273 at 93 Archies Creek.

(b) The CFRO will be discharged in respect of the Pham entities interest in
(i)83 Archies Creek;
(ii)Certificate of title 10304 Folio 799 at 93 Archies Creek.

152Though it is not strictly necessary given my findings on the state of the evidence to this point I will now however consider the respondent’s contention that I should admit coincidence evidence as set out in a notice filed 18 December 2023.

Coincidence evidence
153The Director seeks to adduce evidence pursuant to s98 of the Evidence Act 2008. That section is set out in the following terms:
“The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1)(a) does not apply if—
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.”

154The DPP has provided a relevant notice of the proposed coincidence evidence. Table “A” of that document is set out in the following way:

MATTER

FACTS IN ISSUE TO WHICH THE EVIDENCE RELATES

1.

That Ms Pham was not in any way involved in the commission of any relevant Schedule 2 offence within the meaning of s36V(1)(b)(i) of the Confiscation Act 1997 in relation to the Springvale Property, the Mentone Property and the Archies Creek Property.

2.

That Ms Pham did not know that the Springvale Property, the Mentone Property, and the Archies Creek Property in question would be, or was intended to be used in or in connection with, the commission of any of those offences, or was likely to be or was intended to be, used in, or in connection with, the future commission of any of those offences, within the meaning of s36V(i)(b)(ii) of the Confiscation Act 1997.

4. The coincidence evidence will be adduced to prove that Ms Pham:

(a) did a particular act, namely:

Instructed real estate agent Kim Vu to grant a lease of the Springvale property to Bac Le Vu.

Instructed real estate agent Thong Le to grant a lease of the Mentone property to Van Thuan Le.

Organised or acquiesced to Lam Son Nguyen, being the tenant of the Archies Creek property.

Employed Van Hoa Vu as a “gardener and rubbish removalist” for the Archies Creek property.

Was involved in the commission relevant Schedule 2 offences at each of the Springvale property, the Mentone property and the Archies Creek property.

(b) had a particular state of mind, namely:

Ms Pham knew that each of the Springvale property, the Mentone property and the Archies Creek property would be, or was, intended to be used in, or in connection with, the commission of the relevant Schedule 2 offences, or was likely to be, or intended to be, used in, or in connection with, the future commission of any of those offences.

155Table “B” then provides particulars of each event to support the matters set out in Table “A”.
156The parties were agreed on the legal principles to be applied. I adopt His Honour T Forrest J’s statement as to the principles in R v Penrose(No 2).[157] Particularly, his Honour stated that the central concern of s98(1) is as to the similarity relied on in the evidence said to support a finding that such evidence could be used as coincidence evidence. He stated:[158]
“… Circumstances or events do not need to be identical for two or more events to be admitted as coincidence evidence, however the degree of similarity will influence whether the evidence has significant probative value. … .”
(Footnote omitted.)
[157][2016] VSC 191
[158]Ibid at paragraphs [10]-[11] (as cited by the applicants)

157In CGL v Director of Public Prosecutions (DPP),[159] the Court of Appeal set out four questions to be determined as to whether proposed coincidence evidence is admissible:
(a)   Are the similarities in the specified events and/or in the circumstances in which they occurred such that it is improbable that the events occurred coincidently?
(b)   If so, would the evidence of those events or circumstances tend to prove that the accused did the specific act?
(c)   If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced, or sought to be adduced, by the prosecution?
(d)   If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused.
[159](2010) 234 VR 486
158The probative value of coincidence evidence flows from the similarities between the alleged events or circumstances. It is important to recall that s98 focuses attention on the events said to give rise to the coincidence evidence. The Applicant here provided particulars of the events in Table B. The manner of this particularisation was somewhat confusing given it focused on the execution of the search warrants which uncovered the offending. However read in combination with the matters set out under Table A at paragraph [4] it is apparent that the events the Director focused on were those particular circumstances as to the leasing arrangements that led to certain tenants being placed into the three properties and then the subsequent discovery of the CCH after the execution of the warrants. [160]
[160]T725 -726
159The Applicants submit there is a distinct lack of similarity in the evidentiary matters relating to the three properties and that any similarities are minor, commonplace and found in offending involving cannabis crop houses so regularly they are of no note. These matters are set out in their submissions at paragraphs [10] to [28].
160As to each of the Applicant’s ten alleged differences, these matters can be accepted. However, many of these differences do not go to the relevant events set out in Table “A” and paragraph [4] of the Coincidence Evidence Notice.   Those facts focus on Diem Pham’s involvement in the relevant leasing arrangements at Springvale, the AC and Mentone properties and/or Diem Pham’s knowledge that the properties would be, or were intended to be, used in relevant offending.
161When attention is focused on Table “A” Parts 4(a) and 4(b), it can be seen that most of the acts which the coincidence evidence is called in aid of have already been determined by findings made above. Specifically, I have found:
(a)   Diem Pham instructed Kim Phuong Vu to grant a lease of the Springvale property to Bac Le Vu;
(b)   Diem Pham instructed Thong Le to grant a lease of the Mentone Property to Van Thuan Le;
(c)   Diem Pham organised and acquiesced to Lam Son Nguyen being the tenant of the factory lot;
(d)   There is insufficient evidence to find that Diem Pham employed Van Hoa Vu as a gardener and rubbish remover at Archies Creek.
162To this end, while the Applicant points to a number of differences – and they can be accepted – many are peripheral to the leasing of the properties where CCH were found. On that point, there are significant similarities:
(a)   Diem Pham instructed Phuong Kim Vu to accept a tenant she had found, namely Bac Le Vu;
(b)   Diem Pham instructed Thong Le to accept a tenant she had found, namely Van Thuan Le;
(c)   Diem Pham suggested Lam Son Nguyen approach Jason Wang to lease Archies Creek;
(d)   As at the date of the raid on the Mentone property, three of five properties owned or controlled wholly or in part by Diem Pham, were found to contain cannabis crops.
(e)   The fact that there are so many differences in the location, ownership structure and the timing of the leasing arrangements also focuses attention on the similarity in the leasing arrangements themselves.
163Turning back to consider the questions posed in CGL, I find that the similarities in the leasing process and the subsequent uncovering of the cannabis crops occurred in circumstances that make it improbable that the events occurred coincidently.
164That evidence supports a finding that the Diem Pham cannot displace her burden: that she was not involved in the commission of the offence or did not know in the sense of being wilfully blind to the commission of the offending in the three properties.
165I consider the evidence to have significant probative value because it reveals a pattern of behaviour in the leasing arrangement which is contrary to what could be expected in usual commercial practice. By itself a decision to place one tenant into a property to “help” them or “give them a go” as was suggested is unremarkable. For a landlord engaged in renting properties with a portfolio of five properties to rent two of them on what can only be described as dubious commercial grounds and against the advice of a real estate agent sheds real evidentiary light on her knowledge of the reason for such an arrangement. The involvement of the AC property via a method which placed LLL as a tenant of the 93 Archies Creek factory lot where a cannabis crop was uncovered casts further doubt on her motivation for such arrangements.
166Lastly I do not consider there is any prejudicial effect of the admission of the evidence that would outweigh its probative value. No specific prejudice was put by the Applicant that would outweigh the probative value.
167For these reasons I would admit the coincidence evidence. Further I find that it supports the Director’s contentions that the Applicant cannot discharge her onus.
168I will give the parties seven days to formulate orders consistent with my findings above. I will give parties liberty to apply should a further hearing be required in respect of the final nature of the orders and any costs applications to be made if no agreement can be reached as to orders.

SCHEDULE

DIEM PHUONG PHAM	Second Applicant
and
GMR AUSTRALIA PTY LTD	Third Applicant
and
HTD INVESTMENTS PTY LTD	Fourth Applicant
and
CUI INVESTMENTS PTY LTD	Fifth Applicant

MATTER	FACTS IN ISSUE TO WHICH THE EVIDENCE RELATES
1.	That Ms Pham was not in any way involved in the commission of any relevant Schedule 2 offence within the meaning of s36V(1)(b)(i) of the Confiscation Act 1997 in relation to the Springvale Property, the Mentone Property and the Archies Creek Property.
2.	That Ms Pham did not know that the Springvale Property, the Mentone Property, and the Archies Creek Property in question would be, or was intended to be used in or in connection with, the commission of any of those offences, or was likely to be or was intended to be, used in, or in connection with, the future commission of any of those offences, within the meaning of s36V(i)(b)(ii) of the Confiscation Act 1997.
4. The coincidence evidence will be adduced to prove that Ms Pham: (a) did a particular act, namely: Instructed real estate agent Kim Vu to grant a lease of the Springvale property to Bac Le Vu. Instructed real estate agent Thong Le to grant a lease of the Mentone property to Van Thuan Le. Organised or acquiesced to Lam Son Nguyen, being the tenant of the Archies Creek property. Employed Van Hoa Vu as a “gardener and rubbish removalist” for the Archies Creek property. Was involved in the commission relevant Schedule 2 offences at each of the Springvale property, the Mentone property and the Archies Creek property. (b) had a particular state of mind, namely: Ms Pham knew that each of the Springvale property, the Mentone property and the Archies Creek property would be, or was, intended to be used in, or in connection with, the commission of the relevant Schedule 2 offences, or was likely to be, or intended to be, used in, or in connection with, the future commission of any of those offences.

[2024] VCC 714

27 May 2024