The Director of Public Prosecutions v C v Tran and Ors (No 2)

[2022] NTSC 2

CITATION:The Director of Public Prosecutions v C V Tran & Ors (No 2) [2022] NTSC 2

PARTIES:THE DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAN, Chau Van

TRAN, Thi Be, Objector

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:116 of 2018 (21844586)

DELIVERED:  19 January 2022

HEARING DATES:  6 April 2021, Parties’ written submissions filed 20 April 2021 and 4 May 2021, decided on the papers

JUDGMENT OF:  Barr J

CATCHWORDS:

CRIMINAL PROPERTY FORFEITURE – Final orders – Reasons for Decision published to the parties – Dispute subsequently between respondent/objector and plaintiff as to final orders – Attempt by respondent/objector to re-agitate issues already decided – Crime-used property substitution declaration and other orders made as sought  

Criminal Property Forfeiture Act 2002 (NT), s 43(2)(a), s 44(1)(c), s 81(2) & (4), s 82(a)(ii), s 98, s 106(1)

The Director of Public Prosecutions v C V Tran; T B Tran, Objector [2021] NTSC 7

REPRESENTATION:

Counsel:

Applicant:T Moses

Respondent and Objector:           G Phelps

Solicitors:

Applicant:Office of the Director of Public Prosecutions

Respondent and Objector:           Withnalls

Judgment category classification:    B

Judgment ID Number:  Bar2201

Number of pages:  5

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

The Director of Public Prosecutions v C V Tran; T B Tran, Objector (No 2) [2022] NTSC 2

No. 116 of 2018 (21844586)

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

AND:

CHAU VAN TRAN

Respondent

AND:

THI BE TRAN

Objector

CORAM:    BARR J

REASONS FOR DECISION

(Delivered 19 January 2022)

1. On 27 January 2021, I published and provided to the parties written reasons for decision in respect of the applicant’s further amended application and the objections,[1] leaving for further consideration an objection under s 63(1)(b) Criminal Property Forfeiture Act 2002 to the restraint of the objector’s Land Cruiser as crime-used property.[2]

2. I summarised my findings at [62] – [65] of the primary judgment, and directed that the applicant serve and file a draft of the final orders sought, consistent with the reasons. The applicant then filed and served a draft of the final orders.  

3. When the matter came back before the court for the making of final orders on 6 April 2021, counsel for the respondent and objector made submissions in opposition to the orders sought by the applicant. The submissions were largely inconsistent with the findings, conclusions and proposed orders set out in the primary judgment. It was apparent that the respondent and objector were not in agreement as to the orders which were to follow from the primary judgment. Accordingly, I granted leave for the respondent and objector to file and serve written submissions in relation to the final orders proposed by the applicant, and for the applicant to file submissions in response.

4. The written submissions of the respondent and objector were filed on 20 April 2021. The written submissions of the applicant were filed on 4 May 2021.

5. Counsel for the respondent and objector submitted that a crime-used property substitution declaration should not be made in respect of three blocks of land in Madigan Road, Marrakai, owned by the respondent and objector as joint tenants. That submission is contrary to the matters determined by me at [2], [4] and [65] of the primary judgment. Counsel for the respondent and objector seeks to advance a questionable alternative construction of the relevant statutory provisions (s 81(2)(b), s 82(a)(ii)) which, in this case, would have required the applicant to have unsuccessfully sought a restraining order over properties owned by the objector at 365 and 355 Gunn Point Road (of which the respondent made criminal use) before a determination could be made that those properties were “not amenable to a restraining order or forfeiture” or “not available for forfeiture”.

6. Counsel for the respondent and objector also made submissions in relation to the proper interpretation of the word “may” used in s 101 Criminal Property Forfeiture Act 2002. However, as is apparent from the reference to s 101 at [66] of the primary judgment, the court will not need to consider the meaning of that word until the applicant brings an application under s 98 of the Act for forfeiture of the land subject to a crime-used property substitution declaration.

7. The respondent and objector have not at this stage identified any error in the primary judgment which would stand in the way of a crime-used property substitution declaration against the respondent, and the consequent restraining order over the land referred to in par [5] above.

8. Nor have the respondent and objector identified any error in the primary judgment which would preclude the making of a restraining order over the Landcruiser motor vehicle, there being reasonable grounds for suspecting that that vehicle was crime-used property.

9. It is inappropriate for the respondent and objector to now seek to agitate matters not raised at trial or to re-agitate matters which have already been determined against them on the evidence led at trial. If any of the parties contend that the court has erred in making relevant findings, then an appeal could be commenced after the making of final orders. Any error could be corrected on such appeal.

10. I make an order setting aside any earlier interim restraining orders.

11. I make the declaration and orders set out below:

    1.Pursuant to s 81(2) and s 81(4)(b) Criminal Property Forfeiture Act 2002, a crime-used property substitution declaration that three allotments of land at Marrakai, being 164 Madigan Road, 80 Madigan Road and 64 Madigan Road, are to be substituted for the two allotments of land at 365 Gunn Point Road and 355 Gunn Point Road, Howard Springs, the latter being crime-used property not amenable to a restraining order or forfeiture under the Act, for which I specify an assessed value of $1,220,000.

    2.Pursuant to s 81(4)(c) Criminal Property Forfeiture Act 2002, that the respondent pay to the Territory $1,220,000, being the amount specified in paragraph 1 as the value of the crime-used property.

    3.Pursuant to s 44(1)(c) Criminal Property Forfeiture Act 2002, a restraining order over 164 Madigan Road, 80 Madigan Road and 64 Madigan Road, Marrakai.

    4.Pursuant to s 44(1)(c) Criminal Property Forfeiture Act 2002, a restraining order over cash in the sum of $90,200 seized by police on 4 April 2017.

    5.With respect to the same sum of $90,200, being suspected crime-derived property, a restraining order pursuant to s 43(2)(a) Criminal Property Forfeiture Act 2002.

    6.Pursuant to s 43(2)(a) Criminal Property Forfeiture Act 2002, a restraining order over the Toyota Landcruiser, NT registration CB50MT, being suspected crime-used property.

    7.Pursuant to s 106(1) Criminal Property Forfeiture Act 2002, that the Public Trustee have responsibility for the management and control of the property restrained by these orders.

    8.The question of costs is reserved, with liberty to apply.

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[1]The Director of Public Prosecutions v C V Tran; T B Tran, Objector [2021] NTSC 7 (“the primary judgment”).

[2] Ibid, at [62] – [63].