Pham v Director of Public Prosecutions - [2017] VSC 261

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2010 04338
S CI 2010 04351

SON THANH PHAM	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Respondent

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	20, 21 October, 11 November 2016
DATE OF RULING:	19 May 2017
CASE MAY BE CITED AS:	Pham v DPP
MEDIUM NEUTRAL CITATION:	[2017] VSC 261

---

CRIMINAL LAW – Confiscation of property – Tainted property – Whether ‘carve out’ available to applicant under Confiscation Act 1997 (Vic) – Equitable interest – Whether the applicant was ‘in any way involved in the commission of the Schedule 2 offence’.

CRIMINAL LAW – Confiscation of criminal proceeds – Whether applicant’s bank account was tainted – Derived from parents criminal offending.

TRUSTS – Presumption of advancement – Whether presumption arises in father-son relationship – Gift – Parties purchasing property in joint names – Unequal contributions – Whether Calverley v Green mortgage liability principle should be applied mechanically in cases of criminal offending – Constructive trust for applicant in cases of innocent parties only.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Best	SDR Law
For the Respondent	Ms D Mandie	Office of Public Prosecutions

HIS HONOUR:

Introduction
The Applications

Son Pham claims an interest in 1 Jetty Lane, Maribyrnong, Victoria, and in an ANZ bank account[1] held in his name. Both Jetty Lane and the ANZ account are the subject of restraining orders – Jetty Lane is the subject of a ‘charge-based’ restraining order (R.O. 4338); the ANZ account the subject of a civil forfeiture restraining order (CFRO 4351). Son Pham seeks orders excluding his claimed interests in these properties.[2]
[1]I shall refer to this as the ANZ account. It is to be distinguished from an ANZ “access” account. I will refer to this as the Access Account.
[2]Jetty Lane is also subject to a civil forfeiture restraining order S CI 2010 4352. In the hearing of this matter the DPP agreed that the applicant succeeded in excluding his interest in Jetty Lane on the charge-based restraining order, he would necessarily succeed in excluding the same interest from the civil forfeiture order as it applied to Jetty Lane (see Transcript of Proceedings, Pham v DPP (Supreme Court of Victoria, 2010/04338 and 2010/04351, Justice T Forrest, 20–21 October and 11 November 2016) (‘T’), T172 – T173).

In the shortest possible compass the issues to be determined are:

1.What is the size and nature of the Son Pham’s interest in Jetty Lane.
2.Ought Son Pham’s interest in Jetty Lane be excluded from the effect of the change-based restraining order.
3.Ought Son Pham’s interest in the ANZ account be excluded from the effect of the civil restraining order.

There are numerous sub-issues to these three broad questions which I shall identify as they arise.

In February 2014, Son Pham’s mother Chi Ba and his father Than Hai Pham pleaded guilty to trafficking a drug of dependence (heroin) in not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pham v Director of Public Prosecutions

Details

AGLC: Pham v Director of Public Prosecutions [2017] VSC 261
Case: [2017] VSC 261
Decision Date: 19 May 2017

CaseChat Overview and Summary

In the case of Pham v Director of Public Prosecutions, the applicant, Pham, sought to determine whether certain property could be exempted from confiscation under the Confiscation Act 1997 (Vic). The dispute centred on whether Pham was involved in the commission of the relevant criminal offence, and if his bank account and property could be considered tainted due to his parents’ criminal activities. The court was tasked with deciding whether Pham could avail himself of a ‘carve out’ provision under the Confiscation Act, and whether the presumption of advancement applied in the context of a father-son relationship. Additionally, the court had to consider whether Pham’s bank account, which appeared to have been funded by his parents' criminal activities, was tainted, and if the principle of a constructive trust should apply in cases involving innocent parties.

The primary legal issues before the court involved the interpretation and application of the Confiscation Act 1997 (Vic), specifically the ‘carve out’ provision, and the nature of Pham’s involvement in the commission of the relevant offence. The court also needed to determine whether the presumption of advancement should apply to the joint purchase of property by Pham and his father, and if the principle of a constructive trust should be invoked to protect Pham’s interest in the property. Furthermore, the court had to ascertain whether Pham's bank account was tainted by his parents’ criminal activities, and whether Pham could be considered ‘in any way involved’ in the offence under the Act.

The court found that Pham was not ‘in any way involved’ in the commission of the offence, as there was no evidence to suggest he had knowledge of his parents’ criminal activities. Consequently, the ‘carve out’ provision was applicable, and the property in question was not subject to confiscation. The court also ruled that the presumption of advancement did not apply in the context of the father-son relationship where unequal contributions were made to a joint purchase. However, it did not mechanically apply the Calverley v Green principle in cases of criminal offending, as Pham was considered an innocent party. The court concluded that Pham's bank account was tainted due to his parents' criminal activities, but since Pham was not involved in the commission of the offence, the taint did not extend to him. Therefore, Pham was entitled to retain his interest in the property.

The court ordered that the property in question was not subject to confiscation under the Confiscation Act 1997 (Vic), and that Pham could retain his equitable interest. The court also ruled that Pham's bank account, although tainted, did not result in confiscation due to Pham's lack of involvement in the criminal activities.

Orders