The Director of Public Prosecutions v C v Tran; T B Tran, Objector
[2021] NTSC 7
•27 January 2021
CITATION:The Director of Public Prosecutions v C V Tran; T B Tran, Objector [2021] NTSC 7
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: 27 January 2021
HEARING DATES: 1, 2, 12-14 August 2019, 31 January, 13 February 2020
JUDGMENT OF: Barr J
CATCHWORDS:
CRIMINAL PROPERTY FORFEITURE – Respondent made direct criminal use of house occupied by him but owned by his mother (the objector) – Used house to store, process and package cannabis for supply – Respondent also made criminal use of house on adjoining land owned and occupied by his mother – Stored large quantity of cannabis in vehicle parked at mother’s house – Kept significant amounts of cash in safe in mother’s bedroom – Cash crime-derived – Both houses “crime-used property” – Mother innocent party – Neither house property amenable to a restraining order or forfeiture – Crime-used property substitution declaration made
Criminal Property Forfeiture Act 2002 (NT), s 5, s 11(1)(a) & (1)(b), s 12(1), s 43(2)(a), s 44(1)(b)(iv), s 81(2) & (4), s 82(a)(ii), s 84, s 85(1), s 86(1) & (3),
Misuse of Drugs Act 1990 (NT), s 5(1)
Dickfoss v Director of Public Prosecutions and others [2012] NTCA 1; 31 NTR 16
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: Bar2101
Number of pages: 40
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Director of Public Prosecutions v C V Tran; T B Tran, Objector [2021] NTSC 7
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 27 January 2021)
Introduction
The Director has applied for a crime-used property substitution declaration against the respondent in substitution for two properties of which, it is alleged, the respondent made criminal use, namely Section 3001 Hundred of Bagot known as 365 Gunn Point Road, Howard Springs and the adjoining property, Section 3000 Hundred of Bagot known as 355 Gunn Point Road, Howard Springs.[1]
The objector is the mother of the respondent. I will refer to her as “Mrs Tran”. She is the owner of both 355 Gunn Point Road and 365 Gunn Point Road. At all material times she lived (and continues to live) in a house built on 355 Gunn Point Road. The respondent lived in a house built on the adjoining property, 365 Gunn Point Road.
A person makes “criminal use” of property if the person uses the property in a way that brings the property within the definition of “crime-used property”. Relevantly, that includes using property directly or indirectly in or in connection with the commission of a forfeiture offence, or using property for storing property acquired unlawfully in the course of the commission of a forfeiture offence.[2]
The issues for decision include whether or not the respondent made criminal use of both 365 Gunn Point Road and 355 Gunn Point Road. It is agreed that neither property is amenable to a restraining order (or available for forfeiture).[3] If crime-used property is not amenable to a restraining order or forfeiture, then the court must declare that “property of equivalent value owned or effectively controlled by the respondent is to be substituted for crime-used property”.[4] That requires the court to assess the value of the crime-used property, assessed at the time the relevant forfeiture offence was committed;[5] specify the assessed value in a declaration; and order the respondent to pay to the Territory the amount specified as the value of the crime-used property.[6] The amount thus assessed must be paid to the Territory and may be satisfied wholly or in part by forfeiture of property which is subject to a restraining order.[7]
The ultimate objective of the applicant’s crime-used property substitution declaration application is the forfeiture of three blocks of land owned by the respondent and the objector as joint tenants: 164 Madigan Road, 80 Madigan Road and 64 Madigan Road, all at Marrakai.[8] However, as a necessary preliminary to such forfeiture, the Director has applied for an order that the three properties be restrained.[9]
The applicant has also applied for restraining orders, pursuant to s 44(1)(b)(iv) Criminal Property Forfeiture Act 2002, in respect of (1) a 2014 Toyota Land Cruiser motor vehicle registered in the names of the respondent and the objector, and (2) cash totalling $90,200 alleged to belong to the respondent.[10] The vehicle and the cash were already the subject of interim restraining orders made pursuant to s 44(1)(b)(iv) of the Act.[11] However, in submissions, counsel for the applicant pressed for orders to be made pursuant to s 43(2)(a) of the Act for a restraining order in respect of the Toyota Land Cruiser on the basis that it was “crime-used” and a restraining order in respect of the cash on the basis that it was “crime-derived”.[12] Although orders were sought primarily on those bases, the Director did not abandon the applications made under s 44(1)(b)(iv) of the Act.
Criminal use 365 Gunn Point Road
In September 2018, the respondent pleaded guilty, inter alia, to a charge contrary to s 5(1) Misuse of Drugs Act 1990 that, between 1 March and 4 April 2017, he intentionally supplied a commercial quantity of cannabis plant material to persons unknown (count 1). The maximum penalty for that offence was 14 years’ imprisonment.
Southwood J found that the respondent committed the offence for commercial gain. His Honour’s sentencing remarks in the Supreme Court on 21 September 2018 included the following references to the respondent’s offending in respect of count 1:[13]
Between 1 March and 4 April 2017, the offender engaged in the commercial supply of cannabis in the Darwin region, utilising on occasions Ms Gwenda Walsh who is well-known to the courts. The offender would source cannabis from persons unknown and supply it to Ms Walsh to on-sell. This activity generated a significant amount of cash for the offender, which he would collect from time to time from Ms Walsh. …
Late in the day [on 4 April 2017], police executed a search warrant of the offender’s and his mother’s adjoining houses at 355 and 365 Gunn Point Road, Howard Springs. They found 353.4 grams of cannabis in a cryovac bag which was still attached to a cryovac machine in the offender’s kitchen [at 365]. At his mother’s house, they found 11,744.9 grams of cannabis packaged in 26 cryovac bags which were placed in a duffel bag and stored on the back seat of a utility. The cannabis was later analysed and weighed … The offender was in possession of approximately 24 times the deemed commercial amount of the dangerous drug cannabis. The conservative street value of the cannabis was between $130,000 and $187,000, depending upon the size of deals for which the cannabis was sold.
On 17 May 2017, the offender went around to Ms Walsh’s house to collect some outstanding cash from his previous cannabis supply activities. Police saw him and he was apprehended after he left … . Police found $8,850 in an envelope that the offender had hidden in his underwear which was seized by the police. …
Count 1 is a serious example of the supply of Schedule 2 dangerous drugs. The supply was part of an ongoing drug supply business conducted by the offender for a period of time. It involved using another party to distribute the drugs. It involved planning and organisation. The offender was a distributor of commercial quantities of cannabis and used his family home for that business operation. It would appear that he was caught in the middle of distributing about 12 kg of cannabis into the community when he was picked up by the police.
The respondent made direct and/or indirect criminal use of 365 Gunn Point Road as a base for his commercial drug supply operation. The property was a convenient and secure place for his drug-related activities. He used the house to store, process and package cannabis ready for supply. When police executed the search warrant referred to in [8], they found various drug-related items in addition to the cannabis and cryovac machine, including a loaded unlicensed pistol (with the serial number obliterated) in the respondent’s bedroom; rolls of unused cryovac bags in the refrigerator and the respondent’s bedroom; and $3,800 cash, found in the kitchen cupboard.
The respondent admitted in his affidavit evidence that his offending occurred at 365 Gunn Point Road, as follows:[14]
The offending occurred in the premises of 365 Gunn Point Road, Howard Springs and outside the premises. I did not at any time offend within the real property of 355 Gunn Point Road.
I am satisfied that the respondent made criminal use of 365 Gunn Point Road in that he used the property in such a way as to bring the property within the definition of “crime-used property”. The respondent has not sought to establish the contrary.[15] However, as is apparent from the extract in [10], the respondent denies that he made criminal use of 355 Gunn Point Road, and much of the hearing was taken up with evidence in relation to that issue and the related issue as to whether the $90,200 cash referred to in [6] was “crime-derived”.
Criminal use 355 Gunn Point Road
Contrary to the respondent’s denial extracted in [10], I am satisfied that he made direct and indirect criminal use of 355 Gunn Point Road in several respects, for purposes connected with the commission of a forfeiture offence and his admitted criminal use of 365 Gunn Point Road.
The 26 cryovac bags referred to in [8], which contained almost 12 kg of cannabis, were found in a duffel sports bag on the back seat of the respondent’s Hilux vehicle, which was parked under the veranda of 355 Gunn Point Road.[16] Although there was some brief cross-examination in relation to the cannabis found in the Hilux vehicle,[17] the respondent did not provide an explanation as to why the vehicle was parked at his mother’s house. It is possible that he parked the vehicle with the cannabis inside at his mother’s house so that his children would not come across it at his own house. However, I consider that the most probable reason for parking the vehicle at his mother’s house was to avoid detection in the event that his own house were searched. It was a convenient and relatively secure place to keep the cannabis. Whatever the specific reason or combination of reasons may have been, the respondent made criminal use of 355 Gunn Point Road in connection with the commission of the offence referred to in [7] above.[18]
Further evidence of the link between the 26 packages of cannabis found in the respondent’s Hilux vehicle at 355 Gunn Point Road and his admitted criminal use of 365 Gunn Point Road is that the 26 packages of cannabis had been packed using the cryovac machine found on the kitchen bench at Lot 365 Gunn Point Road on 4 April 2017. A forensic tool analyst attached to the South Australian Police Forensic Response Section had determined that the double and triple heat seal markings on the 26 packages had been created by that same Cryovac machine.[19]
The applicant further alleges that the $90,200 cash referred to in [6] above represented the proceeds of the sale of cannabis made in the course of the respondent’s commercial supply operation, and therefore that the cash was “crime-derived property”.[20] On that basis, the applicant contends that the respondent made criminal use of 355 Gunn Point Road by keeping the cash in a safe in his mother’s bedroom to which he alone had effective access. For reasons explained in the following paragraphs, I am satisfied that the respondent made criminal use of 355 Gunn Point Road by being in possession of and storing the proceeds of the sale of drugs in a safe on the property. The most probable reason for keeping the money in a safe at his mother’s house was to avoid detection in the event that his own house were searched. The safe in his mother’s bedroom was a convenient and secure place of concealment.
Mrs Tran contended that all of the money found in the safe belonged to her and that none of that money was owned by the respondent.[21]
At the hearing, Mrs Tran gave evidence with the assistance of an interpreter. She answered many questions confidently in English, although on a number of occasions her confidence was misplaced in that she had not properly understood the question. Even making due allowance for her disadvantage as a non-native speaker of English, I found her at times evasive, obfuscatory and untruthful.
Mrs Tran’s evidence was that a combination safe was installed in her bedroom on 29 July 2013, following a break-in and theft of money from the “old safe”.[22] The respondent said in his oral evidence that a surveillance system was set up in 2013, because someone had broken into his mother’s house about five weeks after the death of his father. Mrs Tran said that she had the firm Darwin Lock and Key install closed circuit television technology and motion detectors because she was fearful of further burglary. She claimed, “I know the combination to the safe. I do not open the safe.”[23] She also claimed as follows:
The combination to open the safe is difficult and I struggle to operate the lock mechanism with the combination. Chau knows the combination to the safe and opens the safe for me when I ask him to.
The respondent was cross-examined in relation to the safe in his mother’s bedroom (referred to as the “large dial safe”). He explained that he had set up the combination for that safe under the supervision of the technicians who supplied and installed it. I am satisfied that the respondent was the only person who knew the combination to unlock the safe. He was also the only person who had the technique, proficiency and/or manual dexterity to open the safe.[24] Although it is possible that Mrs Tran had the combination written down somewhere, I consider that it is most unlikely that she ‘knew’ the combination, in the sense that she had committed it to memory.[25] Although she claimed to have had the password, she agreed that she did not give it to police.[26] When she was asked what was the first number of the password, she answered, “I don’t know if I have given to them or not”. She did not answer the question. Moreover, whether or not she knew or had access to the combination, she admitted that she could not open the safe.
The respondent claimed that he had to be there every time the safe in his mother’s bedroom was opened.[27] He said he was regularly required by his mother to open the safe: “It varied from once a week, twice a week to once a fortnight, or once every three weeks”. For reasons which will become clear, I reject that evidence. Although I accept that he regularly took access to the safe, it was not at the direction of his mother or for his mother’s purposes; it was for his own purposes.
In his affidavit evidence, Detective Sgt Ramage described the search of Mrs Tran’s bedroom at 355 Gunn Point Road on 4 April 2017, and the conversation with her, as follows:[28]
During the search, a large safe was located in the main bedroom. I asked [Mrs Tran] what was in the safe. She stated “I don’t know”. I then asked her to provide me with the code for the safe to assist me with opening it. [Mrs Tran] stated that she did not know the code and she was unable to open it. …
I contacted the watch house to enquire about the code for the large safe from [the respondent]. The code was provided but I was still unable to open the safe. I then arranged to have [the respondent] driven out to 355 Gunn point Road in order for him to open the safe. I watched him as he opened the safe. It required a significant amount of manual dexterity.[29]
The affidavit evidence of Detective Sgt Ramage was consistent with his contemporaneous notes, which read relevantly as follows:[30]
Thi Bi Tran asked to open safes and locked boxes in her bedroom. She opened a locked toolbox which she stated contained her money and business documents. She advised she did not know how to open the large safe and did not know what was in there.
Detective Sgt Ramage was cross-examined on the fact that his notes read, “… advised she did not know how to open the large safe”, whereas his affidavit evidence was that he asked Mrs Tran for the code and that she replied that she did not know the code. Detective Sgt Ramage said that he was always aware that Mrs Tran did not know the code. He ultimately pointed out that there was no inconsistency between his notes and his affidavit evidence.[31]
In my opinion, Mrs Tran’s inability to open the safe in her bedroom and apparent ignorance of the combination for that safe are both significant, but far more significant is the fact that she told Detective Sgt Ramage that she did not know what was in the safe. Detective Sgt Ramage was not cross-examined to contradict his evidence that Mrs Tran had denied knowledge of the contents of the safe. In her affidavit evidence, Mrs Tran said that she was asked by a police officer what was in the safe in her bedroom. She claims she answered: “Even if I tell you, you would not believe me, open it yourself”.[32] She gave the same or similar evidence in cross-examination.[33] Mrs Tran did not seek to explain in her evidence why she thought that the police would not believe her if she told them that the safe contained $90,200. Nor did she give evidence, for example, “I told the police that I did not know what was in the safe but I was not telling the truth”, and then explain why she had not told the truth. If the cash found in the safe was her property, accumulated by a succession of bank withdrawals and placed in the safe as she alleged,[34] there was no reason for her not to have informed the police of that. Ultimately, I reject Mrs Tran’s evidence. I am satisfied that she told Detective Sgt Ramage that she did not know what was in the safe, and that was because she did not know what was in the safe.
In her affidavit evidence, Mrs Tran referred to the fact that she had a locked toolbox in her bedroom which, she said, she used on a day-to-day basis to meet expenses associated with her crabbing business.[35] From that toolbox, she would pay the expenses relating to the crabbing business including bait, fuel and maintenance of the boats and motor vehicles. She estimated that she would spend approximately $6,000-$8,000 per week on expenses relating to the crabbing business.[36] I accept her evidence that she regularly accessed the toolbox, that the money in the toolbox was her own money, and that it had no connection with the criminal activities of the respondent. Consistent with that, she was able to open the toolbox when requested to do so by police. That was in marked contrast to her inability to open the safe, her inability to provide police with the combination for the safe, and her assertion to Detective Sgt Ramage that she did not know what was inside the safe. Mrs Tran deposed in her affidavit evidence that she retained money at home in two locations,[37] adding, “I put funds into and remove funds from my safe or my toolbox from time to time”,[38] suggesting that she used the safe and the toolbox interchangeably for the purposes of her own business dealings in crabbing and mangoes. However, I reject that evidence insofar as I am satisfied that Mrs Tran did not use the safe in connection with her own business dealings.
Mrs Tran claimed in her affidavit evidence that, on 16 March 2017, the safe contained $100,000 in cash, being 10 bundles, each of $10,000, withdrawn by her from her various bank accounts and being the receipts from her business dealings in mangoes and leasing of crabbing licenses.[39] Mrs Tran also claimed in her affidavit evidence that she received funds (clearly a reference to cash) paid to her by her son David for the previous mango season, but added, “I do not specifically recall how much the last season’s mango monies I put into the safe and what amount from the mango season were put by me in the safe and the balance in the tool box”.[40] To the extent that this was an assertion that some part of the alleged $100,000 in the safe was cash paid by her son David for the previous mango season, it is inconsistent with the statement referred to in the first part of this paragraph that the overall amount of $100,000 represented the proceeds of mango sales and crabbing licence fees which had been banked, but then withdrawn in component amounts of $10,000. Mrs Tran made a similar inconsistent claim in her cross-examination:[41]
In your affidavit you said that the money in your safe you withdrew from the bank and then you put it in the safe?--- Yes and other payment from the mango … .
When further cross-examined, Mrs Tran claimed that the money in the safe was the accumulation of a number of withdrawals of $10,000 or $15,000 which she said she made from her bank.[42] I reproduce her evidence below:
And how many times did you go to the bank to get that money to put in the safe?---Maybe once every fortnight.
Once a fortnight, for how long?---I can’t remember.
………………
Mrs Tran, before the break I was talking about when you went to the bank to get the money to put in the safe back at your house. Do you remember that? ---Yes.
And, you said you went maybe once a fortnight to the bank to get that money?---Yeah. Maybe, I’m not sure. Because I’m too busy.
After some apparent confusion between counsel and the witness, the cross examination resumed as follows:[43]
Do you remember in your affidavit you said that you took money from the bank and put it into the safe in your bedroom?---Yeah, that’s right.
Do you remember which bank you went to? Was it Westpac, ANZ?--- Maybe Commonwealth or National Bank.
And, how many times did you go to the Commonwealth Bank or one of the other banks to get all of the money that you put in the safe?--- I can’t remember.
And, did you say that you went with someone when you took that money, or did you go by yourself?---If I had to take some money out, I have to go as well with one of my children.
And, would that be David or Tina?---Yes.
And, would you talk to the bank employee and ask for the money, or would Dave or Tina talk to the bank employee?---Myself.
And the bank employee would give you the money?---Yeah.
And, you’d take it in your hand?--- No. I give it to my son to hold, I can’t hold.
Okay. You’d give it to David to hold?--- And, when I go home, he give back to me and put in the safe.[44]
Okay. So David would hold the money while you drove home?--- Yeah, when we going home.
And then how did it get into the safe?--- I counted the money and put in the safe.
You counted the money?---I count back again.
Where did you do that at home?---Yeah. I do it at home.
Where at home?---In the bedroom, on the table.
In the bedroom, on the table, and then did you open the safe?---The money in the safe it was a long time. It was put in a long time and I never – I didn’t touch it.
The money in the safe was there for a long time?---Yeah.
………………
His Honour: Mrs Tran, on the occasions that you went to the bank to take out the money, to take home to put in the safe, how much would you withdraw on each occasion?---Ten to 15,000.
Mr Moses: And, what size notes did you get from the bank? Were they $100 notes, $50 notes or all sorts of notes?---It’s up to the bank, if they have $100 or $50 notes, various notes.
All right, so they just give you the bundle?---Yes, they count it like $10,000 or $5,000 something with that.
Now, who opened the safe when you got home? --- [Interpreter … Yes, so she just said like “I put the money in the safe and it’s about $100,000 and I never touch it anymore”].
Okay, so you put the money in the safe?---Yes.
……………..
Did you put the money in the top of the safe, in the middle of the safe or at the bottom of the safe?---In the middle. On the top one, I put all my documents, papers.
And who opened the safe so you could put the money in the middle of the safe?--- Because at that time I didn’t lock the safe, yes, I put the – yeah, a shelf of all my things in there and then I just ---
So the safe was open?---It was not locked.
Not locked. You opened the safe - the door?---Mm mm.
You put the money in?---Mm mm.
$10,000 maybe?---Yeah.
And then you closed the door but you didn’t lock it?---No.
And then two weeks later you got another $10,000 from the bank?--- A month.
A month later?---Yes.
You got another $10,000 from the bank?---Yeah.
And you took it home?---Yes. I put the money in the toolbox to pay for the fishermen, buy the crab.
All right, so you had some money in the toolbox and that was the money you used to pay for fuel and for wages?---Yeah.
For the crabbing?---Fuel and a bill or something.
And separate to that money you had the money in the safe which you didn’t open - which you didn’t take any money out of?---Yes.
And you didn’t lock the safe, left it unlocked?---Yes, like if I go out for a long time.
What about when you went to the bank? Did you lock it when you went to the bank?---No. When I am - like when the money which like $100,000 and I lock it and then I don’t touch it.
So it was unlocked when there was $20,000 in there?---Because I live only by myself, so.
Mrs Tran, did your house get broken into?--- Yes, before. Before I no safe and I put in the tin box, but someone they break in my house so they steal all.
And is that why you bought this big new safe?---Yes, that’s so, I say I have to buy the big safe, put in there.
And then you left it unlocked?---Yeah, they know the – there’s a lock, you’ve got - they come in my house. I know (inaudible) ---
So you only locked the safe one time, when you finally put $10,000 in it?
His Honour: $100,000.
Mr Moses: $100,000 in it?---And when $100,000 and locked – no more touching.
And then locked it and no more touching?---No more touching.
Notwithstanding her “no more touching” evidence, Mrs Tran later said in evidence that she called the respondent to count the money for her. She explained, “Because I had too many things to do so I did call him to count the money for me”, and “… I called him because I work home myself, always home, so I no time to count. I call Chau help me to count”. This evidence was most improbable. Given that, as alleged by Mrs Tran, the cash withdrawals had been counted out at the bank, and then counted by Mrs Tran herself at home before she placed each withdrawn amount into her safe, there was no logical reason for anyone to count the money again. Moreover, the reason given by Mrs Tran for asking the respondent to carry out the alleged re-count is spurious; it makes no sense that Mrs Tran had “no time to count” the money when, on her evidence, she was “always home”. I consider that it is most unlikely that Mrs Tran would have called upon her son to count money which she had already counted in $10,000 (or $15,000) amounts at the time she (allegedly) placed them in the safe.
Mrs Tran said that the cash amount counted by the respondent was $100,000.[45] It is unclear when the re-count by her son is alleged to have taken place, whether before or after 16 March 2017 (the date referred to in [26] above). It is also unclear why Mrs Tran referred to 16 March 2017 in her evidence about the cash contents of the safe. Finally, Mrs Tran offered no explanation for the fact that police found $90,200 and not $100,000 in the safe on 4 April 2017.
Mrs Tran’s evidence contained a number of other improbabilities, for example, her evidence that she did not lock the safe as she (allegedly) progressively accumulated the total amount of $100,000; that she only locked the safe at the final stage. This did not make a great deal of sense in circumstances where the safe had been acquired after the burglary referred to in [18]. When Ms Tran was asked about that apparent inconsistency, she said that she had made her house safer with security cameras and locks.[46] If her explanation as to why she did not need to lock the safe is accepted, it is unclear why she ultimately decided that she would lock the safe after she had (allegedly) deposited $100,000, when she had not locked it after placing the first $10,000, or the second $10,000 (or $15,000) and so on. As a final improbability, Mrs Tran claimed that the money in the safe was her savings, but was not able to explain why she would withdraw her savings from the bank, where it was safe, and earning interest, and retain it as cash in an unlocked safe at home.
There are several further matters which have confirmed my conclusion that Mrs Tran was not telling the truth in her evidence about the $90,200 found in her bedroom safe.
The applicant led expert evidence from Gideon Ruparanganda, a forensic accountant and financial investigator, who had analysed Mrs Tran’s real estate records, taxation records, bank statements and other banking records. Because Mrs Tran had not provided information about the specific amounts and the dates on which the component amounts of the $100,000 found in her bedroom safe were allegedly withdrawn, Mr Ruparanganda was unable to confirm Mrs Tran’s claim that the moneys had been withdrawn from her bank accounts.[47] Although Mrs Tran produced a single page of her passbook statement issued by the National Australia Bank, showing a withdrawal of $110,500 on 16 September 2014 and said by her to have been for the purchase of the Toyota Land Cruiser referred to in [6] above, she did not produce any bank statements containing debit entries referable to the alleged cash withdrawals referred to in [26] – [31] above.
Mrs Tran was thus unable to point to any objective evidence which might support the alleged cash withdrawals. Further, on Mr Ruparanganda’s analysis of Mrs Tran’s taxation records for the four financial years (year ending 30 June 2014 to year ending 30 June 2017),[48] he found that Mrs Tran had suffered significant business losses over those financial years.[49] It was therefore not apparent that Mrs Tran had the financial capacity to make the cash withdrawals she described. The evidence of Mr Ruparanganda does not exclude the possibility that Mrs Tran could have made the alleged cash withdrawals from her crabbing and mango growing businesses, since significant amounts of money were claimed for depreciation in the four financial years referred to. Because depreciation claimed was in respect of an asset purchased in an earlier financial year, the significant deductions for depreciation do not reflect a reduction in the cash flow available to Mrs Tran in the year depreciation was claimed. Mr Ruparanganda agreed that cash flow is not affected by depreciation, and that Mrs Tran could have had “a lot more money” available to her than the net business loss calculations for each of the financial years might suggest. He agreed with the proposition that a full analysis would require consideration as to when the depreciating assets were acquired, to then work out in which financial year any major expenditure (impacting on cash flow) had been made.[50]
However, not only did Mrs Tran not lead evidence which might support the alleged cash withdrawals, as discussed in [33], she also did not lead evidence of her financial capacity to have made the alleged cash withdrawals, even though it was open for her to have done so after Mr Ruparanganda’s concessions.
DNA evidence linking the cash with Gwenda Walsh
The DNA evidence is doubly relevant. It supports the applicant’s contention that the $90,200 cash referred to in [6] and [15] was “crime-derived property”. It thus supports the related contention that the respondent made criminal use of 355 Gunn Point Road by keeping such crime-derived property in the safe in his mother’s bedroom.
In brief, some of the rubber bands binding the bundles of cash found in the safe in Mrs Tran’s bedroom yielded a mixed DNA profile in which Gwenda Walsh was a contributor. The facts found by Southwood J in sentencing the respondent included the fact that the respondent would supply cannabis to Gwenda Walsh to sell, an activity which generated a significant amount of cash which the respondent would collect from Ms Walsh from time to time.
The cash seized from the safe in Mrs Tran’s bedroom was placed in a bag described by Detective Sgt Ramage as the “drug security bag” shown in the audio-visual recording, exhibit P5. The bag was then opened in the police interview room at Berrimah and the rubber bands removed from the cash and placed in a brown paper bag, as shown in the audio-visual recording, exhibit P6.[51] The bag containing the rubber bands was then placed in a temporary storage locker in the drug squad exhibit room before being taken to the NT Police Forensic Science Branch.
Dr Joannah Lee, forensic scientist, explained in cross-examination that, because the rubber bands had been co-mingled, in contact with each other in the bag, resulting in potential transfer of DNA from one band to another, they were randomly allocated into five groups for sampling.[52]
The Forensic Science Branch Biology Unit ‘Item Examination Sheet 1A’, dated 25 July 2017,[53] referred to 142 rubber bands being divided randomly into groups of 10 for sampling with swabs being taken from five groups of bands (four groups, A to D, each containing 15 bands, and one group, E, containing 22 bands). The swabs taken from each group, five in all, were submitted for DNA analysis. The analysis of the swabs from groups A, B, D and E produced complex mixed DNA profiles which were unsuitable for interpretation. However, the analysis of the swab taken from group C, which also resulted in mixed DNA profiles being obtained, was attributed to four individuals. There was no statistical support for the hypothesis that Mrs Tran was one of the four contributors to that mixture,[54] but one of the identified individuals was the respondent and one of them was Gwenda Walsh. Ms Walsh was a contributor to the extent of 52 per cent of the sample,[55] and hence the principal contributor. On statistical weighting, the DNA profiles were at least 100 billion times more likely to have occurred if they came from Gwenda Walsh and three unknown individuals than if they came from four unknown individuals. This provided “extremely strong support” for the proposition that Ms Walsh was a contributor, and, in this case, the main contributor.[56]
Dr Brian McDonald, an expert geneticist engaged on behalf of the respondent and the objector, criticised the handling by police of the rubber bands before they reached NT Police Forensic Science Branch.
Dr McDonald also made various criticisms of the forensic testing of the swab from group C. One such criticism was that the likelihood ratio for Ms Walsh did not take into account possible relatives of Ms Walsh.[57] Although Dr McDonald’s concern in relation to possible relatives was scientifically based and theoretically justified, insofar as the deconvolution stage of the testing did not unambiguously identify a profile that matched Ms Walsh as distinct from family members of Ms Walsh, it was irrelevant in the practical sense because Ms Walsh had not been identified only by a ‘cold hit’, that is, her DNA matched to DNA in a database, and linked in no other way. Rather, her DNA had particular relevance because she had been a participant in criminal activities with the respondent. It was to be expected that, in the circumstances, Ms Walsh’s DNA might be found on at least some of the rubber bands used by her to bind the cash in bundles. Moreover, there was no evidence to suggest that any family member of hers had any relevant involvement. The fact that Dr McDonald was “at a loss to know how they ended up comparing Ms Walsh’s profile”[58] was simply because he had not been informed of the actual connection.
Dr McDonald also criticised the actual testing undertaken by the NT Police Forensic Science Branch, on a number of bases. He stated that it appeared that the sample taken from group C was “too complex for the STRmix software to actually analyse”.[59] Related to that assertion, he expressed doubt or surprise at the fact that only one group of rubber bands out of the entire batch was determined to have only four – and no more – contributors, whereas all of the others were shown to be too complex to analyse. When questioned further, he agreed that the reason might be simply that there had not been co-extensive commingling of the DNA from the various rubber bands.[60] He nonetheless went on to express an opinion, “I think it is an inability of the technology and the information available to accurately determine how many contributors there are in the sample”, without explaining why that possibility was more logical or persuasive than the suggested simple reason. He subsequently gave evidence as follows:[61]
Now, the critical reason why I’ve gone on about this for so long if you like is that, if there are more than four contributors to a mixture, that mixture becomes uninterpretable. And that is the case for the other four samples taken from the loci there. They are uninterpretable because the laboratory has determined that there are more than four contributors. I would maintain that [group C] falls into the same category and is too complex to interpret.
It can therefore be seen that Dr McDonald was of the view that the group C sample must have had more than four contributors. However, he did not satisfactorily explain why that fact alone rendered the group C sample too complex to interpret for all purposes. Moreover, and this is very significant, he later agreed that the likelihood ratio of greater than 100 billion applicable to Ms Walsh had inherent strength,[62] and stated his opinion that it was “strong evidence” that Ms Walsh was one of the contributors to the mixture.[63]
The fact that some of the rubber bands binding the bundles of cash found in the safe in Mrs Tran’s bedroom yielded a mixed DNA profile in which Gwenda Walsh was undeniably the main contributor is strongly probative that the cash had come from Ms Walsh’s commercial cannabis supply operation in which she was a criminal associate of the respondent.
In contrast, the DNA evidence does not assist Mrs Tran. Although she could not be excluded as a contributor to the group C sample, there was no evidence that she actually was a contributor to the sample. There was thus no DNA evidence to support Mrs Tran’s claim that she had handled the bundles of cash or the rubber bands. Further, there was no logical reason for the DNA of Ms Walsh to be on rubber bands binding bundles of cash which Mrs Tran had (allegedly) withdrawn from her bank accounts.
Counsel for the objector and respondent made detailed submissions in relation to the possibility of DNA contamination.[64] One submitted possibility was that rubber bands with Ms Walsh’s DNA might have “found their way” into Mrs Tran’s house and then been placed on the cash by the respondent or, innocently, by Mrs Tran herself. Another submitted possibility was that there may have been transfer of Ms Walsh’s DNA to the respondent’s hands, and then secondary transfer from the respondent to the rubber bands when he (allegedly) counted the money at his mother’s request. Although it is possible to speculate that the respondent, who dealt regularly with Ms Walsh, might have had the DNA of Ms Walsh on his hands at the time he allegedly counted some of the money withdrawn by Mrs Tran before it was placed in his mother’s safe, I have rejected Mrs Tran’s evidence as to the alleged re-count by her son as improbable, for the reasons stated in [29]. A possibility which relies on that improbability is mere conjecture.
Counsel for the objector and respondent contended for a number of other possible ways in which there may have been secondary or tertiary transfer of Ms Walsh’s DNA to the rubber bands binding the bundles of cash found in Mrs Tran’s safe, including secondary transfer of Ms Walsh’s DNA by the respondent to the door of the safe (which he opened at the request of Detective Sgt Ramage), followed by tertiary transfer by Detective Sgt Ramage of the DNA from the safe door to the rubber bands. While these and other possibilities raised by counsel might cause a reasonable doubt in the minds of jurors in a criminal trial, where the standard of proof is beyond reasonable doubt, the evidence to support the possibilities in the present case is thin or non-existent, whereas the obvious and most probable explanation for Ms Walsh’s DNA being on the rubber bands was because she had given the cash to the respondent in the course of the respondent’s drug supply business.
There is another matter which increases the probability that the cash found in Mrs Tran’s safe was crime-derived. When Southwood J sentenced the respondent, his Honour referred to the “significant amount of cash” generated by the respondent’s commercial supply of cannabis in the Darwin region.[65] Yet the amount of cash found in the respondent’s home at 365 Gunn Point Road was only $3,800, hardly a significant amount. It may be noted that, after the respondent had gone to Ms Walsh’s house on 17 May 2017 to collect some outstanding cash from his previous cannabis supply activities, he was apprehended with an amount of $8,850 in an envelope concealed on his person. In my opinion, it is probable that the $92,800 found in the safe in Mrs Tran’s bedroom represented some of the “significant amount of cash” which the respondent had collected from Ms Walsh. Just as he kept a significant amount of cannabis in a vehicle parked at his mother’s home, so he kept a significant amount of cash in the safe at his mother’s home. The fact that Gwenda Walsh’s DNA was on the rubber bands binding the bundles of cash is strongly probative that the origin of the cash was the commercial cannabis supply operation carried on by the respondent and Ms Walsh. In the face of this evidence, the explanation advanced by Mrs Tran for the presence of the $90,200 in her safe, already improbable, becomes unbelievable.
Mrs Tran, as objector, has failed to satisfy me on the balance of probabilities that she is the owner of the $90,200 referred to in these reasons. I am satisfied on the balance of probabilities that the $90,200 is the property of the respondent, and that it is crime-derived property.
The Toyota Land Cruiser
As mentioned in [6], the applicant has applied for restraining orders in respect of a 2014 Toyota Land Cruiser vehicle registered in the names of the respondent and the objector. That vehicle was already the subject of an interim restraining order pursuant to s 44(1)(b)(iv) of the Act. However, the restraining order is now sought primarily pursuant to s 43(2)(a) of the Act, on the basis that there are reasonable grounds for suspecting that the vehicle was “crime-used”.[66]
Mrs Tran objects to any restraining order being made in relation to the vehicle on the basis that she is the owner of the vehicle, that the vehicle was at all times controlled by her (and thus “not effectively controlled by a person who made criminal use of the property”), and that she is an innocent party in relation to the vehicle in the sense that she had no reasonable grounds for suspecting that it was being or would be used in or in connection with the commission of a forfeiture offence.[67]
Mrs Tran’s evidence was that she purchased the Land Cruiser vehicle on or about 16 September 2014. The purchase price was $110,500, paid by bank cheque from an account with the National Australia Bank.[68] A single page extract from her passbook statement confirms a withdrawal of $110,500 on 16 September 2014. Based on his analysis of Mrs Tran’s bank records, Mr Ruparrangata confirmed that the withdrawal had taken place, although he was unable to identify the payee of the bank cheque.[69] The Serial Number Search Certificate shows that the vehicle was manufactured in 2014 with the year/month of compliance shown as 2014 – 08, that is August 2014, with registration shown as having expired on 16 September 2017.[70] Taking the contents of the certificate into account with the date of the proven cash withdrawal, 16 September 2014, I infer that the vehicle was purchased by Mrs Tran as new, and first registered on 16 September 2014. I find that the purchase monies for the Land Cruiser motor vehicle were paid by Mrs Tran from her passbook account.
For reasons given in paragraphs [55] to [57] below, I am in no doubt that the respondent made criminal use of the Land Cruiser vehicle on 4 April 2017, so as to bring the vehicle within the definition of “crime-used property”.[71]
In addition to the charge relating to the commercial supply of cannabis, referred to in [7] above, the respondent pleaded guilty to a charge that, on 4 April 2017, he intentionally supplied a commercial quantity of methamphetamine to persons unknown (count 2).
The sentencing remarks of Southwood J described the offending and the use by the respondent of the Land Cruiser vehicle in connection with the offending:
Towards the end of March 2017, the offender decided to source a commercial quantity of methamphetamine in order to engage in the supply of [that] dangerous drug. He used the services of Nerice Mallon as an intermediary to purchase the drug on his behalf. On 31 March 2017, the offender made enquiries through Ms Mallon about purchasing two ounces of methamphetamine. …
On 4 April 2017, … Ms Mallon arranged to taste the product with TK [her contact] and then contacted the offender shortly after 7 AM to let him know the deal was back on.
Later that morning, police started mobile surveillance of the offender.
The offender dropped his children at school, then around 9:30 AM drove a Toyota Landcruiser that he owns with his mother and picked up Ms Mallon. They then travelled to [location redacted] and collected some money from Ms Walsh.
The offender drove to the Hibiscus Shopping Centre and parked his car. TK then arrived. The offender gave Ms Mallon $15,000 to purchase 1.5 ounces of methamphetamine. Ms Mallon got into TK’s car and they travelled to Lee Point Resort where she was supplied with 40.54 g of methamphetamine in a plastic bag, which is slightly more than the commercial quantity of that drug.
TK then drove Ms Mallon and the drugs back to the Hibiscus Shopping Centre and she got back into the offender’s car. Police then arrived to apprehend the offender and Ms Mallon, but the offender locked the doors of his car. The Police officer held his Police badge up to the window of the car and banged loudly on the windows to get the offender to unlock the doors. However, the offender kept the doors locked for a sufficient amount of time to allow Ms Mallon to hide the drugs inside her vagina. He then unlocked the doors.
Police searched the offender’s car and the offender and Ms Mallon. They found $3,000 belonging to the offender. Ms Mallon was taken away by a female police officer to a private area and eventually she produced the methamphetamine from her vagina. The substance was later weighed and analysed and confirmed as being 40.54 g of the Schedule 1 dangerous drug, methamphetamine. A commercial quantity of methamphetamine is 40 g. Methamphetamine sells for around $100 per point, or around $700 per gram, giving the total quantity of the drug a conservative street value of between $28,000 and $42,000, depending on the size of the deals the drug was sold for. …
As to count 2 on the indictment, it is important to note that all the offender had done was purchase 40.5 g of methamphetamine, which is just over the commercial quantity of that dangerous drug. He did not have the opportunity to do anything with it after he acquired it. … Nonetheless, the offending is serious offending because methamphetamine is such an insidious and highly dangerous drug. The criminal act of the offender amounted to the first step in the process of the offender on-supplying that dangerous drug. The acquisition of the drug was planned. It again involved the use of an intermediary. The drug was acquired with the proceeds of illicit dealing in another dangerous drug and represented an escalation in the level of the offender’s drug offending.
The respondent thus used the Land Cruiser vehicle to collect Ms Mallon (who he intended would purchase methamphetamine on his behalf), to drive to the home of Ms Walsh to collect $15,000 (the purchase price of the methamphetamine), and to then drive to the Hibiscus Shopping Centre carpark in Leanyer to enable Ms Mallon to rendezvous with her drug supply contact. When Ms Mallon got into her contact’s vehicle, she had $15,000 cash provided to her by the respondent.[72] When Ms Mallon later returned and entered the Land Cruiser vehicle, she was in possession of the commercial quantity of methamphetamine referred to, and the respondent clearly knew that she was in possession of that Schedule 1 dangerous drug because he had planned the purchase of the drug using Ms Mallon as his agent. Moreover, he locked the windows of the vehicle in an attempt to ‘buy time’, to assist Ms Mallon in her ultimately unsuccessful attempt to conceal the methamphetamine on her person. The use of the Land Cruiser in the offence charged as count 2 was sufficiently proximate as to render the vehicle “crime-used”. The connection between the use of the vehicle and the offending could not be described as only “tenuous or remote”.[73]
The sentencing remarks of Southwood J contained a finding, based on Crown facts admitted by the respondent, that the Land Cruiser was a vehicle that he “owned with his mother”. Of less significance, the vehicle is then referred to as the respondent’s: “parked his car” and “locked the doors of his car”. In my opinion, however, it would be unfair to attribute an admission as to joint legal ownership of the vehicle to the respondent based on the admitted facts in sentencing proceedings, where ownership of the vehicle was not an issue. A certificate issued under the hand of the Deputy-Registrar of Motor Vehicles dated 22 August 2018 stated that Mrs Tran and the respondent were the “registered owners” of the vehicle as at 4 April 2017.[74] Such registration may be an indication of legal ownership, but is not conclusive. According to Mrs Tran, the vehicle was registered in the names of Mrs Tran and the respondent because “the insurance is cheaper than if it was solely in my name”. In her oral evidence, Mrs Tran suggested that an additional reason was that the respondent spoke English.[75] Mrs Tran claimed that the vehicle was for her personal use (rather than for use in connection with her crabbing business); that both keys to the vehicle were usually kept on a table at her home; and that she agreed to the respondent borrowing her vehicle, which he did from time to time.[76]
It emerged in the cross examination of Mrs Tran that she had only driven the vehicle on one occasion,[77] and that was on her house block. Whenever the vehicle was driven on the road, the respondent was the driver.[78] Mrs Tran suggested that, if she needed to buy something or to go somewhere, she would call on the respondent to drive her.
In his affidavit evidence, the respondent deposed that he considered that the vehicle belonged to his mother. He said that the vehicle was parked in his mother’s driveway at 355 Gunn Point Road. He claimed that he would ask his mother to borrow the vehicle from time to time.[79] The respondent’s oral evidence in relation to the vehicle was as follows: [80]
The Landcruiser Sahara, do you remember that? --- Yes.
That had some nice features on it. I think there was a towbar on the back? --- Yes.
Was that so you could stick your boat on the back when you – to drive it to go out crabbing? --- Boat or pull people home, as a recovery vehicle, when my brother would get bogged or other workers that work for my mum, because I used it as a recovery vehicle to go retrieve them back [from] bush when they get bogged.
So if David got bogged? --- Yep.
You’d jump in that and drive out there and get him? --- Yeah, because David would call back to mum’s, yeah.
And it had some like spotlights on the front? --- Yes.
And a winch? --- Yes.
So obviously the winch is to help other people get out. Did you take it four-wheel driving at all anywhere? --- It was quite – yeah, I’d take the kids out to the camp.
To the camp? --- Yeah.
Where was that? --- Adelaide River, at the narrows.
Okay, and you went out there a bit with the kids? --- I would take them fishing on the weekend here and there, yep. ….
It was purchased in 2014? --- I think so.
And it was brand-new when purchased? --- Yeah, when mum purchased it, yes.
It’s, I think it’s in quite a well looked after state. Did you take it to get serviced fairly regularly? --- I would service it is well.
You’ve got some mechanical training? --- A bit.
Yep, and so you’d do some of the repairs or some of the servicing? --- I’d just service – drop the oil or fill it up – yeah, fill it up, just simple stuff.
It is potentially significant that Mrs Tran purchased a very expensive Land Cruiser vehicle in 2014, and that for the next two years and six months she drove it only once – and then not on a public road. The only driver was the respondent. A possible inference in all the circumstances is that the vehicle was a gift to the respondent; alternatively, that Mrs Tran gave the respondent an interest in the vehicle by making him a joint owner. Irrespective of the source of the purchase moneys, the purchase agreement was not in evidence and so I do not know whether or not the respondent was a purchasing party, becoming a legal owner jointly with his mother. Moreover, there was no evidence as to the vehicle’s odometer reading as at 4 April 2017, or at any time. There is thus no evidence as to the extent to which the respondent used the vehicle, in terms of the kilometres driven by him. It may have sat idle for significant periods of time; I do not know. Even if the number of kilometres could be ascertained, the cross examination of the respondent suggests that he used the vehicle as a recovery vehicle in connection with his mother’s business, for example, when his brother or other workers would get bogged. The purpose of use (as between Mrs Tran’s and the respondent’s respective purposes) is not known. On reflection, therefore, the alternative possible inferences I referred to are not the only valid inferences available. Both Mrs Tran and the respondent gave evidence that the respondent would ask his mother for permission to use the vehicle. They were not challenged in relation to that evidence. My understanding of the evidence is that the respondent asked for permission when he intended to use the vehicle for his own purposes. He had implied permission from his mother to use the vehicle when he drove it at her request, whether to buy or collect something for her, or to drive her where she wanted to go. In all the circumstances, the fact that the respondent was the only driver of the vehicle is not conclusive. Nor, in my view, does the vehicle registration take the matter any further; Mrs Tran’s explanation for the inclusion of the respondent as a registered owner is believable.
Given the considerations referred to in [61], the applicant has not satisfied me on the balance of probabilities that the Land Cruiser vehicle is/was the property of the respondent – whether as sole owner or joint owner with Mrs Tran – such as to enable this Court to make a final restraining order pursuant to s 44(1)(b)(iv) Criminal Property Forfeiture Act 2002. The interim restraining order referred to in [6] should be set aside. Given my findings and conclusion, it does not appear that I need to make any order with respect to Mrs Tran’s objection, at least insofar as it objects to the restraint of the vehicle pursuant to s 44(1)(b)(iv) Criminal Property Forfeiture Act 2002 .
However, following from my findings in [57], I am satisfied that there are reasonable grounds for suspecting that the Land Cruiser motor vehicle is crime-used. As a result, I would make a restraining order in relation to the vehicle pursuant to s 43(2)(a) Criminal Property Forfeiture Act 2002. It does not appear that the vehicle has previously been restrained pursuant to s 43(2) of the Act, and so the time for Mrs Tran to file an objection to its restraint is probably still open.[81] I will hear the parties as to the need for a hearing or further hearing of any objection; alternatively, as to the findings which should be made on the evidence adduced in relation to the existing objection, consistent with these reasons.
I refer to my findings in [50] that the sum of $90,200 is the property of the respondent and that it is crime-derived property. The requirement for a restraining order under s 43(2)(a) Criminal Property Forfeiture Act 2002 is that “there are reasonable grounds for suspecting that the property is crime-derived”. That requirement is clearly made out. Accordingly, I would make a restraining order in relation to that money pursuant to s 43(2)(a) Criminal Property Forfeiture Act 2002. Further, having found that the money is the property of the respondent, I would make a final restraining order in relation to the money pursuant to s 44(1)(b)(iv) Criminal Property Forfeiture Act 2002.
I next refer to my findings in [11] and [13]. I am satisfied on the balance of probabilities that the respondent made criminal use of both 365 Gunn Point Road and 355 Gunn Point Road, such that those properties are “crime-used property”. I am also satisfied that these properties are not amenable to a restraining order or forfeiture under the Criminal Property Forfeiture Act 2002. It follows that the applicant is entitled to a crime-used property substitution declaration against the respondent. In this respect, I am satisfied on the balance of probabilities, on the basis of agreement between the parties, that the combined value of Lot 365 and Lot 355 Gunn Point Road at the relevant date was $1,220,000.[82] Pursuant to s 81(4)(b) and 4(c) Criminal Property Forfeiture Act 2002, I specify that the assessed value of Lot 365 and Lot 355 Gunn Point Road is $1,220,000 and would order that the respondent pay to the Northern Territory the sum of $1,220,000 as the value of such crime-used property. Because the specified crime-used property is not available for forfeiture, I would order pursuant to s 81(2) Criminal Property Forfeiture Act 2002 that property of equivalent value owned or effectively controlled by the respondent be substituted for the crime-used property. Further, I would make a restraining order pursuant to s 44(1)(b)(iv) read with s 44(1)(c) Criminal Property Forfeiture Act 2002 in relation to the three allotments of land at Marrakai owned by the respondent and objector as joint tenants and referred to in [5] above: 164 Madigan Road, 80 Madigan Road and 64 Madigan Road.
The proposed restraining order in relation to the three blocks of land at Marrakai would not preclude the respondent or the objector from adducing evidence and making submissions as to the proper interpretation of the word ‘may’ in s 101 Criminal Property Forfeiture Act 2002, specifically as to whether this Court has a discretion in relation to ordering the forfeiture of property restrained pursuant to the crime-used property substitution declaration against the respondent (and, if so, how the discretion should be exercised).
The applicant should serve and file a draft of the final orders sought, consistent with these reasons. If there is an issue as to the content of such orders, I will re-convene to hear further submissions.
I will also hear the parties as to costs.
----------------------
[1]Amended Application for Crime-Used Property Substitution Declaration and Orders, dated 10 July 2019.
[2]Criminal Property Forfeiture Act 2002 (NT), s 84, s 11(1)(a) & (b). A “forfeiture offence” is an offence which is punishable by imprisonment for two years or more – see s 6 of the Act.
[3]Criminal Property Forfeiture Act 2002 (NT), s 81 (2)(b), s 82(a)(ii).
[4]Criminal Property Forfeiture Act 2002 (NT), s 81(2).
[5]Criminal Property Forfeiture Act 2002 (NT), s 85(1).
[6]Criminal Property Forfeiture Act 2002 (NT), s 81(4).
[7] Criminal Property Forfeiture Act 2002 (NT), s 86(1), s 86(3).
[8]Criminal Property Forfeiture Act 2002 (NT), s 98, s 101.
[9]Pursuant to s 44(1)(b)(iv) Criminal Property Forfeiture Act 2002 (NT).
[10]Amended Application for Crime-Used Property Substitution Declaration and Orders, dated 10 July 2019, par 2 (d) & (e).
[11]Order made 22 November 2018, as amended by Order made 7 February 2019.
[12]Criminal Property Forfeiture Act 2002 (NT), s 43(2)(a) empowers the Supreme Court to make a restraining order in relation to property if there are reasonable grounds for suspecting that the property is crime-used or crime-derived. See the Amended Application for Crime-Used Property Substitution Declaration and Orders, dated 10 July 2019, par 3; and applicant’s further submissions dated 11 August 2020, pars 3, 5, 9 and 13.
[13]The Criminal Property Forfeiture Act 2002 (NT), s 141(a), permits the Court to have regard to, inter alia, the sentencing transcript following a conviction for a forfeiture offence.
[14]Affidavit Chau Van Tran sworn 14 December 2018, par 9.
[15]Criminal Property Forfeiture Act 2002 (NT), s 83(1).
[16]Affidavit Martin Small Ramage affirmed 24 October 2018, pars 44 and 45.
[17]T 110.6.
[18]See the discussion in Dickfoss v Director of Public Prosecutions and Others [2012] NTCA 1; 31 NTLR 16 at [18] – [21].
[19]Affidavit Martin Small Ramage affirmed 24 October 2018, par 61.
[20]Criminal Property Forfeiture Act 2002 (NT), s 5, s 12(1).
[21]Affidavit Thi Be Tran sworn 16 January 2019, par 37; T 63.2.
[22] Affidavit Thi Be Tran sworn 16 January 2019, par 31.
[23]Referring to the situation as at 16 January 2019.
[24] T 160.7. Detective Sgt Ramage was unable to open the safe even after being provided with the correct combination. When the respondent was brought to the premises, he was able to open the safe quickly.
[25]In his cross examination at T 116, the respondent said, “My mum has the combination, the number, the code for it as well, but she could never do it, because her eyesight is not that good and fingers as you can see, shakes a bit. She could not open it. She has difficulty and then hence why she asked me to do it.”
[26]T 81.9.
[27]T 62.9; T 116.9.
[28]Affidavit Martin Small Ramage affirmed 24 October 2018, pars 40, 42.
[29]In his evidence at T160, Det Sgt Ramage explained his use of the expression “significant amount of manual dexterity” as the fact that Ramage had the combination but could not open the safe, whereas the respondent “did it really quickly”. Ramage conceded that he (Ramage) “just didn't do it properly”, and agreed that a certain technique was required.
[30]Exhibit P-4, p 34; T 139, 157.
[31]Transcript p 159.7.
[32]Affidavit Thi Be Tran sworn 16 January 2019, par 46.
[33]Transcript p 81.9: “I told them that check by yourself because if it's safe, that you won't believe me”.
[34]See [26] and [27] below.
[35]Affidavit Thi Be Tran sworn 16 January 2019, par 28.
[36]Affidavit Thi Be Tran sworn 16 January 2019, par 13.
[37]Affidavit Thi Be Tran sworn 16 January 2019, par 27.
[38]Affidavit Thi Be Tran sworn 16 January 2019, par 35.
[39]Affidavit Thi Be Tran sworn 16 January 2019, par 33. The particular significance of the date 16 March 2017 is unclear: police executed the relevant search warrant at 355 Gunn Point Road on 4 April 2017.
[40]Affidavit Thi Be Tran sworn 16 January 2019, par 36.
[41]T 72.9.
[42]Transcript p 73 – 74. The reference to $10,000-$15,000 is at T 75.9.
[43]Transcript p 74.8 – 77.8.
[44]The word ‘safe’ was mis-transcribed as ‘shed’ at transcript p 75.4.
[45]T 82.6.
[46]T 83.4.
[47] Affidavit Gideon Ruparanganda affirmed 5 July 2019, par 63.
[48]The period of five to ten months arises on the evidence of Mrs Tran that withdrawals of $10,000 were made each month for ten months, or every fortnight for ten fortnights, and includes possible intervals varying between fortnightly and monthly.
[49] T 130.5.
[50] T 131.5.
[51]T 162.9 – 163.
[52]T 169.9, 170.4.
[53]Exhibit P3, p 48 – 49.
[54]That may not be as significant as it seems because, as Dr Lee explained at T 174.8, if the number of contributors were underestimated, the STRmix program could falsely exclude minor contributors [STRmix™ is a software program used to interpret mixed DNA profiles]. Dr Lee was nonetheless confident that there was no evidence of more than four contributors to the group C sample: T 35.2, 178.3.
[55]Evidence Dr Joannah Lee at T 35.4, referring to Exhibit P3, p 75.
[56]Exhibit P1, Statutory Declaration Dr Joannah Lee, Forensic Scientist, Section 9, Table. See also the Appendix to exhibit P1 and the evidence of Dr Lee at T 36 for explanation of likelihood ratios. The possibility that there may have been an additional contributor would not have affected the extreme likelihood that Ms Walsh was a contributor: T 37.5.
[57]Exhibit R9, Report Dr McDonald, par 30.
[58]T 193.5.
[59]T 193.7.
[60]T 194.3.
[61]T 196.4.
[62]T 217.9 – 218.2.
[63]T 219.2.
[64] Written submissions on possibility of DNA contamination, filed 20 August 2019.
[65] See [8] above.
[66]Applicant’s further submissions dated 11 August 2020, par 3.
[67] Further Amended Notice of Objection dated 9 August 2019, par 2, reflecting the criteria for setting aside restraining orders in s 63(1)(b) Criminal Property Forfeiture Act 2002 (NT).
[68] Affidavit Thi Be Tran sworn 16 January 2019, par 22. The account identified by Mrs Tran as the source of the withdrawal was an NAB Passbook account – see affidavit Gideon Ruparanganda sworn 5 July 2019, par 40.
[69] Affidavit Gideon Ruparanganda sworn 5 July 2019, pars 55, 63.
[70] Serial Number Search Certificate dated 20 August 2018, annexure ‘MSR 12’ to the affidavit of Detective Sgt Ramage affirmed 24 October 2018.
[71] Criminal Property Forfeiture Act 2002, s 11(1)(a): property “used … directly or indirectly in or in connection with the commission of a forfeiture offence.”
[72] Affidavit Detective Sgt Ramage affirmed 24 October 2018, pars 23, 34.
[73]See the observations of the Court of Appeal of Western Australia in Director of Public Prosecutions (WA) v White (2010) 41 WAR 249, cited with approval by the Northern Territory Court of Appeal in Dickfoss v Director of Public Prosecutions and Others [2012] NTCA 1; 31 NTR 16 at [14].
[74]Affidavit Detective Sgt Ramage affirmed 24 October 2018, par 68, annexure ‘MSR 11’.
[75]T 62.8.
[76]Affidavit Thi Be Tran sworn 16 January 2019, pars 23, 24 and 26.
[77] T 78.6, 79.1.
[78] T 79.2.
[79] Affidavit Chau Van Tran sworn 14 December 2018, par 11.
[80] T 111.
[81]Criminal Property Forfeiture Act 2002, s 60, s 63 (1)(b).
[82] Agreed Facts dated 12 August 2019. The agreed value of 365 Gunn Point Road was $570,000 and the agreed value of 355 Gunn Point Road $650,000. The relevant date is “at the time the relevant forfeiture offence was or is likely to have been committed” - Criminal Property Forfeiture Act 2002 (NT), s 85 (1).
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