Thi Thu Ha Nguyen and Thi Dong Nguyen v Director of Public Prosecutions
[2017] VCC 1217
•30 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-04992
| THI THU HA NGUYEN and THI DONG NGUYEN | Applicants |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HIS HONOUR JUDGE JORDAN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7-18, 28 August 2017 |
DATE OF JUDGMENT: | 30 August 2017 |
| CASE MAY BE CITED AS: MEDIUM NETURAL CITATION: | Thi Thu Ha Nguyen and Thi Dong Nguyen v DPP [2017] VCC 1217 |
REASONS FOR JUDGMENT
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Subject: Applications for exclusion from unexplained wealth restraining orders
Catchwords:
Legislation Cited: Confiscation Act 1997
Cases Cited:
Judgment: Applications dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | In person | |
| For the Respondent | Ms E Ruddle | Office of Public Prosecutions |
HIS HONOUR:
1 On 23 September 2015 his Honour Judge Carmody sentenced Nam Son Nguyen to a total effective sentence of three and a half years imprisonment with a non-parole period of two and a half years. There were four charges that included cultivating a quantity of cannabis that was not less than the commercial quantity, two charges of theft and a charge of trafficking in a drug dependence.
2 I will refer to this man as “Son” for ease of reference and because that approach has already been adopted in some of the papers.
3 On 27 October 2015 his Honour made unexplained wealth restraining orders with respect to five properties pursuant to the Confiscation Act 1997. The registered proprietor of three properties was Son’s sister, Ha. His mother, Dong was the registered proprietor of the other two. The applicant sister has been described as “Ha” and the applicant mother as “Dong” in the materials filed by their then solicitors. As these abbreviations appear throughout the documents they were used in the trial. It is also convenient to use them in this judgement. The applications were heard together.
4 These properties will be forfeited to the State unless otherwise excluded. The applicants both seek an order excluding their properties from the unexplained wealth restraining orders. Ha seeks such an order with respect to 214 Forrest Street Ardeer, 137 Hilma Street Sunshine West and 147-151 Devonshire Road Sunshine. Dong seeks an order with respect to 665 Ballarat Road Sunshine West or Ardeer and 6 Glinden Avenue Ardeer.
5 The scheme of the Act is clear that I have to determine the matter on the balance of probabilities and to succeed the applicants carry the onus of satisfying me that the restrained properties were lawfully acquired. Section 40G of the Act sets out some of the specific matters which the court needs to consider in these applications. Unless the applicants prove otherwise the restrained properties are presumed to have not been lawfully acquired. Evidentiary requirements for an exclusion order are set out in the Act. In particular documentary evidence of transactions must be provided although other evidence may be accepted in certain circumstances.[1] It is not necessary for present purposes to go through the machinery of the Act in any greater detail. It should be said that a good deal of latitude was given to the applicants in terms of the evidence received due to them being unrepresented.
[1]Confiscation Act 1997 s40T
6 When this matter was first called on, I enquired of Ha and Dong who had no legal representation but were assisted by a professional interpreter whether they wished the matter to proceed. A Mr Tu Phan Nguyen was also in attendance and has been throughout the duration of the trial. He was described as the boyfriend of Ha. I will refer to this gentleman as “Phan”. He attended all day every day and assisted them. I allowed him to play an active role in that regard. He and Ha both indicated they are conversant with English and both speak excellent English. The interpreter was only required for Dong.
7 Both applicants indicated they wished to proceed representing themselves and that they had previously had two firms of solicitors acting at various stages. One or other of the solicitors had prepared lengthy affidavits together with multiple exhibits which are before the court in support of their exclusion applications.
8 I indicated at the outset that attempts were being made to obtain a duty lawyer from the bar to give free legal advice to the applicants about court procedure, the nature of the proceedings before the court and in particular the onus they bore in terms of the exclusion relief sought. A duty lawyer could not be obtained. Attempts were made throughout the morning and over lunch but at 2.15pm there was still no one available.
9 The applicants still wished to proceed and they indicated a desire to call Son as a witness. He was currently serving his sentence at Loddon prison. They also wished to call a witness who was currently in Vietnam and would not be returning to Australia for about two weeks. I indicated that the court would arrange for a video link to Loddon so Son could give evidence and if necessary the matter could be adjourned part heard so the witness from Vietnam could give evidence on her return to Australia.
10 Out of the usual trial order I asked Ms Ruddle, counsel for the respondent DPP, if she would tender the documents that she wished to rely on at the start of proceedings. This was done so that it would be clear to the applicants what material was going to be used in opposition to their exclusion applications. For ease of understanding during the hearing the respondent was referred to as the “prosecution” and Ms Ruddle as the “prosecutor”. The respondent’s documents became exhibits A to L. I invited the applicants and Pham to take the opportunity of looking at this material overnight before commencing any oral evidence.
11 On the second morning I again explained the procedure in some detail. The first witness was Dong. To ensure the material she wished to put before the court was tendered I asked whether she wished to rely on documents including her lengthy affidavit sworn 15 June 2016 together with its numerous exhibits. Her affidavit became exhibit D5 after a number of other documents were tendered. The affidavit had clearly been prepared and served by her then lawyers.
12 In the end in order to assist the applicants to follow what document was being referred to, I required the respondent to tender the two lengthy court books. Accordingly there is some duplication between the numbered exhibits that I asked the respondent to tender prior to oral evidence. For ease of reference I will refer to the court book page numbers in footnotes as that was the simplest method of ensuring the applicants were following the documents being discussed throughout the hearing.
13 D1 is several documents about Dong’ poor health. D2 is a set of undated handwritten figures and some Vietnamese writing that Ha and Dong say relate to the Hui investment scheme referred to in the affidavits. D3 and D4 are handwritten letters in Vietnamese purporting to be related to some financial transactions. I accepted D2, D3 and D4 over the respondent’s objection but later made it clear that in order to properly assess the weight of these I would need to hear from the authors of those documents to explain them after translations were given to the respondent. D5 is her affidavit.
14 Dong then gave evidence and I allowed Ha to ask her questions by way of an examination in chief. Dong was then cross-examined. I found her a most unreliable, evasive and unsatisfactory witness for a number of reasons.
15 To take one example, she purchased the Glinden Avenue property for some $325,000. When cross-examined about how she met the repayments on the mortgage for that property her answers were unsatisfactory as to the amounts involved and the sources of the available money. There were very vague suggestions that never became clear that she did some work for her children who gave her weekly amounts of a few hundred dollars. Then there were statements that nieces and nephews used to give her gratuitous payments of money for no reason other than her age. She even pointed in court to Phan, Ha’s boyfriend who I have already referred to, as being similarly generous to her in handing over money although no reason was given for this. Later on, but not till the second day of her evidence she said this was because she cooked meals for him.
16 When she was taken to her CBA application for a mortgage loan of $260,000, her evidence became more dubious. The loan application documents describe her as being a machine operator who was earning $54,999 per year.[2] The employer was said to be her daughter, Phuong, who apparently runs a grocery shop. What a machine operator would be doing at a grocery shop to the tune of $55,000 per year was never explained and is hard to imagine.
[2]Court Book (CB) 518
17 When challenged about this entry on the application form, she blamed it on the “broker”. In other words this broker had just made this up. She was taken to two printed payslips that indicated her wage of $2115 per fortnight and an annual salary of $55,000 supposedly from the daughter’s grocery shop. Dong said the payslips were false.[3] She also blamed these false payslips on the broker. When I asked her myself where this broker did business she could not say.
[3]CB 523-524
18 The CBA loan application is dated 29 June 2012. It indicated some other very unsatisfactory pieces of evidence. It records $72,050 as cash savings and nominated a Westpac bank account.[4] When the Westpac figures are looked at, they show $ 72,000 was deposited only a few days earlier on 18 June 2012. Unsatisfactory answers were given about how this large deposit occurred in view of the bank figures showing very small amounts indeed that predate it.
[4]CB 519
19 The CBA loan application also describes her owning $20,000 worth of furniture. Dong had told me more than once that she had been living with her daughter and thus did not have to spend any money when she was endeavouring to explain how she had saved up enough money to buy the property. When I asked her how it was she owned $20,000 worth of furniture she again blamed this on the broker. She conceded she did not have that furniture.
20 She had told the court that she did not drive. When asked about a Toyota motor vehicle being recorded in the loan application as one of her assets, she conceded she did not drive and did not own any car. That was a falsehood she laid at the feet of the broker once again.
21 There were other examples where her evidence both in affidavit and in oral form was extremely unreliable to such an extent that I found her credit very seriously impugned. It is always a great advantage to be able to see a witness giving evidence and observe a witness. Even taking into account language difficulties and evidence coming via a very professional interpreter, it was apparent that this was a witness prone to inconsistent, evasive and indeed positively misleading answers.
22 At one stage when some matters were put to her that showed patent inconsistency in her evidence she admitted she was tired and that was why she had not told the truth in court the day before.[5] It seemed to me she would really say anything when pressed into a corner and faced with a plain contradiction.
[5]Transcript (T) 193
23 Another example of a body of evidence where transactions involving significant amounts of money were left unexplained was in relation to two very large withdrawals of cash from a bank account. On 29 June 2012 she withdrew $31,500 in one lump sum.[6] For a woman who was at pains to stress throughout this trial that she was very frugal and in effect spent nothing on herself this is a large sum indeed. The gist of her evidence was that she had no personal needs to speak of and she was entirely looked after by her daughter Phuong. When pressed about the purpose and recipient of such a large amount she ranged from saying it could be for personal needs or someone else needed money.
[6]CB 552
24 On 31 July 2012 an amount of $40,000 was withdrawn and similarly she was pressed on such a large lump sum withdrawal.[7] She claimed she could not remember why she did it. She then proffered an explanation that it could be for her daughter or it could have been something to do with a “Hui” investment scheme. I do not accept that she was being truthful with respect to these large sums of money and with respect to her evidence generally.
[7]CB 553
25 There were further discrepancies concerning real estate agent records as to the rent she received and repayments that were made on the mortgage loan.[8]
[8]CB 11,41
26 A lot of questions in relation to a block of land at 22 Isabel Street Sunshine West that she acquired it seems in 2011 also lead to some incredulous answers that further damaged her credit. Her evidence was that her daughter Phuong, for no reason that was properly explained, in effect gave her a block of land in the sense of having paid the deposit on that block. When asked why this was done she said it was for looking after the daughter’s children.
27 She needed a large loan in order to settle on the block and this time it was a Westpac loan application that was relevant. As best I can understand the very vague evidence on this topic, it seems she said again a broker came to the party. This time he was a man by the name of Tuan about whom she could give no details really other than that name. He managed to obtain $203,000 by way of a loan from Westpac after applying on her behalf in March 2011.
28 The details given to Westpac included her employer as being Hai Ha Supplies. Dong claimed she knew nothing about such an organisation. The application to Westpac also claimed that her salary there was $43,798 per annum. She said she did not know how this got into her signed application to Westpac either. She even claimed that the broker did not ask her any questions about such matters. In any event Westpac released $203,000 by way of a mortgage loan.
29 As with the other evidence about such helpful broking in her CBA application, I do not accept her evidence about these falsehoods. On the probabilities I am satisfied she purposely misled these banks.
30 Evidence she gave as to $80,000 profit on the resale of this block and how she managed repayments of $83,492 on the Westpac loan before the resale was never explained satisfactorily. On 29 November 2011 she repaid in one lump sum $47,492 to Westpac. She told me that was made in cash. [9]
[9]CB 550-551
31 She was pressed further as to her capacity to put her hands on that amount of money in one lump sum. She again reiterated that she came here in 2006 and started saving. Her evidence was she had only had one job in a noodle shop for a while. She again reiterated that she never bought anything for herself and she saved all her money over the years from Centrelink and also received periodic amounts of couple hundred dollars from children.
32 Challenged further she then volunteered for the first time that she also worked on a Geelong farm. This was not mentioned in her affidavit and had never been mentioned before in court but just fell from a witness under pressure.
33 Overseas financial transactions recorded by Austrac as being made by her were also the subject of challenge.[10] She flatly denied these transactions ever occurred save for the first sum of $5000 on 29 July 2011 sent to her elder son in Vietnam. If her testimony is to be believed there is a total of $64,000 sent to the elder son and $21,329 sent to Ha that just did not occur, save for the first $5000 I have mentioned.
[10]CB 537
34 She said she gave her passport to a money remitter but could not offer any other explanation why these Austrac records exist. Even as to the $5000 she did admit sending, when asked about the circumstances in which that occurred her evidence was circuitous, evasive and in the end lacking any acceptable explanation.
35 Her immigration records were provided and there is inconsistency even there between what she said in her affidavit about travelling to Vietnam to collect money and the department records. She said she travelled to Vietnam twice in 2011 and once in 2010 and on each occasion she brought back $9900 being under the $10,000 declared limit and on another occasion $6000. This was a total of about $26,000.[11]
[11]CB 13
36 This did not sit with the immigration records. The department has recorded she was in Vietnam for some ten and a half months from 2 May 2010 and returned on 12 March 2011. Accordingly there would only be one return entry to Australia in that time. She swore in her affidavit there were three returns and on each of those she was carrying cash in the amount of $9900 twice and $6000 on the third occasion.[12] She could offer no explanation for this inconsistency.
[12]CB 13, 540
37 Due to the seriousness of the allegations made regarding the two brokers, I made it clear to the applicants that I would need to hear from these witnesses before accepting Dong’s evidence about the origin of the falsehoods in the loan applications. On the fourth morning from the bar table Ha gave identifying details about two brokers said to be the men referred to.
38 The applicants wished to call these two brokers and I was successful in having a duty barrister come to court to give pro bono advice including the procedure for subpoenaing a witness. Also my tipstaff made an appointment and took them down to the court officer they needed to contact to see about this. At the request of the applicants I made the requisite orders about the issue of subpoenas and short service with respect to these two brokers.
39 On the third day of her evidence Dong was asked again about the lump-sum payments to Westpac coming on top of the monthly repayments of about $1200-$1300. She was unable to adequately explain where these payments came from. When asked again as to the $47,492 lump-sum payment on 29 November 2011 she still maintained that it came from her savings. She was pressed on the topic and asked why it was with $47,492 in savings that on 15 November 2011 her daughter Phuong paid the monthly instalment of $1373 for her.[13]
[13]CB 551
40 Dong then said she could not read any of these figures because of eyesight problems. She said she had not been able to read any figures up till now. This had never been mentioned in the course of her evidence over the previous two days. I do not accept this was a genuine complaint. It was another example of Dong coming up with anything that she thought might get her out of an awkward moment in the box.
41 Further unsatisfactory evidence was given with respect to $83,492 paid to Westpac between 2011 up to July 2013 on top of the monthly payments on that loan and where that $83,492 came from.
42 She was taken to a new bank account she opened with Westpac on 19 February 2013 in the nature of a Westpac Choice Account.[14] Records show that between 19 February 2013 and November 2014 no less than $176,636 was deposited into that new account. Dong claimed that this was money she had accumulated, had obtained from her children and was the profit on the sale of a block of land in Isabel Avenue. She then came up with a further explanation as to this amount and said that maybe her daughter had put that in the new account.
[14]CB 556
43 It was put to Dong that across all her bank accounts between April 2011 and July 2013 total deposits amounted to $322,786. When confronted with this suggestion, after being reminded that she was on Centrelink and receiving relatively small sums of money from her children, Dong then made the suggestion that it was from her elder son in Vietnam that she obtained this money. I reject this evidence as being highly improbable.
44 In a similar vein, she was asked about the purchase of 665 Ballarat Road Sunshine West. At times the parties referred to it as being in Ardeer but it is the same house and land property in Ballarat Road. It was purchased for $295,000 and she applied to Westpac on 18 July 2013 for a loan of $236,000.[15]
[15]CB 502 -508
45 This further loan application to Westpac is again riddled with untruths about her assets and employment. This time she was described as a purchasing clerk.[16] She accepted there were falsehoods in the document but again she laid all the blame for this on Tuan, the same broker. She said he only asked her name and her date of birth and no more.
[16]CB 503
46 When it was put to her that two properties she owned, 29 Churchill Avenue where she resided and 665 Ballarat Road were both the subject of police raids on 12 March 2015 and large amounts of hydroponic equipment and plants were found, she denied any knowledge of these being on her premises.
47 She even said at one stage that she was in Vietnam at that time because her mother was ill. When I pressed her about when her mother died after she had told me earlier in the trial that it was prior to 2015, she said her mother died on 1 July 2012 or 1 July 2013. Whichever of those two years was correct her mother was certainly not ill in March 2015. I do not accept her evidence that she had no knowledge of such crop cultivation equipment. They were part of the admitted facts that her son was sentenced on in September 2015.
48 She was reminded when she was asked about her knowledge of hydroponic equipment that that she herself had pleaded guilty to a cultivation of cannabis charge in the County Court in 2008. She received a suspended sentence. The offence concerned a crop house in Norlane. She said in effect she was not guilty and she only pleaded guilty because she was told to do so to assist her immigration status. I do not accept her evidence that she did not know about the equipment or plants at the two Melbourne properties raided nor her lack of knowledge about equipment for growing cannabis generally.
49 Her evidence was interposed by a video link to Loddon prison. Her second boy, Son, who was sentenced by Judge Carmody, was examined and re-examined by Dong and Ha as well as cross-examined. His evidence was completely unsatisfactory.
50 He even seemed to resile from the reality of this guilty pleas to the four charges he was sentenced on. On one view of his evidence he was not admitting much if any guilt. He seemed to imply that his legal representative had not even conferred with him properly. He inferred he only pleaded guilty because he was an illegal immigrant. Apparently he appealed against the severity of the sentence but no issue was ever raised about the impropriety of the guilty pleas.
51 There were a number of other very implausible aspects of his evidence. In particular his account of his sudden wealth due to gambling fitted into this category. On his version he was something of a star gambler at Crown from day one. Within a short time arriving from Vietnam people gave him money to gamble with. From a $300 stake he won $30-40,000 according to his account. Crown betting records show that he had purchased $59,100 by way of chips in just the month of October 2011. He had only won $7000 in that month. Similar figures that belie his capacity as a star gambler were in June 2012 when he purchased $21,700 in chips and lost $4800 that month. In July 2012 he also had a singularly unsuccessful month in which he purchased $23,840 in chips but overall lost $9740 for the month.
52 The evidence about his gambling indicated a witness of little credibility. I myself asked him how it was he came to Australia in early 2011 and by October 2011 he had $59,100 to spend on gambling chips. His answers were implausible.
53 He was asked about a property at 29 Churchill Avenue. It is apparent that it was part of his plea that he lived there with Dong and Ha.[17] He now gave a different version. He said 665 Ballarat Road Maidstone was not a drug house which was also inconsistent with facts he admitted when he pleaded. This evidence was simply an attempt in my view to shield his mother and his sister from any possible involvement in the cultivation of cannabis at various addresses.
[17]CB 403
54 He denied his mother knew anything about cultivating cannabis. When it was put to him that she had been convicted of such offending in regard to a drug house in Norlane in 2008, he did not seem to be willing to accept that he knew anything about that. In fairness he was in Vietnam at that stage. That police raid and seizure took place on 18 February 2008 and his mother pleaded on 20 October 2008. I just do not accept his claimed ignorance of these matters particularly with the risk of his mother’s deportation at that time.
55 Another topic on which his evidence was implausible was the so called loan to Ha in 2013. He said this totalled over $1 million. He would have had the court believe that this was legitimately obtained money essentially from gambling successes. But in another breath he spoke about losing at Crown at times in such a way that it caused him to borrow money from loan sharks.
56 I reject the evidence of Son as to any lawful accumulation by him of his gambling funds and wealth generally. His evidence did not assist the applicants to discharge the onus on them. It was so improbable that it carried no persuasion in regard to their unexplained wealth at issue in these two applications.
57 Ha then gave evidence. She came to Australia in 2006 and did year 11 and 12. Her results saw her get into science at Melbourne University in 2010. Her evidence as to accumulation of funds was that she worked part-time jobs for her sister at the Dong Phuong Grocery, at Woolworths, at the fish market and other part-time jobs. There is no paper work that supports any of these jobs save for $469 recorded as having come from Woolworths in 2008/09. In 2009/10 she said she earned as much as $40,000 from the grocery shop job.
58 She also said she made money from what she referred to as “daily loans” or “day loans” to various people. As I understand it these were short-term money loans made in cash in amounts that involved $5000 or $10,000 at times. She kept the cash at home apparently. There are no records of any such loans.
59 She also gave evidence of large sums of money that she made from the Hui investment scheme which could be productive of sums of $18-$20,000. In spite of her saying she got a monthly Hui paper record nothing was produced.
60 She gave evidence that her brother, Son, gave her $1.1 million from his gambling successes. Again there is no documentary evidence of success from legitimate gambling with lawfully obtained funds. I do not accept that Son gambled at Crown with lawfully acquired funds. I do accept Ha was in receipt of money in three amounts reaching that total.[18] These funds, together with a loan of $105,000 from Phuong, were used to purchase 147-151 Devonshire Road Sunshine for $999,000 in 2013. This is a petrol station business premises.
[18]CB 645
61 Years earlier than that and in spite of just being out of high school, she made a deposit on a block of land in 2009 but again written confirmation of this is lacking. In June 2010 she purchased 214 Forrest Street for $256,000 with the deposit coming from her savings, from money from Vietnam and from her Hui involvement. No satisfactory documentary evidence of these sources of the funds to purchase Forrest Street was put before the court.
62 She purchased 137 Hilma Street Sunshine West for $325,000 in 2012. Again there is no documentary trail that satisfies me of any lawful acquisition of the funds necessary for this purchase. As her mother had done, this witness said that false documents were put in by brokers for bank mortgage loans on the two houses that she mentioned being Forrest Street and Hilma Street. The next year 2013 saw the $999,000 purchase at Devonshire Road.
63 The Westpac bank was the recipient of the glaring falsehoods leading to a loan of hundreds of thousands in 2010 for Forrest Street via the broker Tuan that she blamed for the fabricated financial details. Then in 2012 it was ANZ who were similarly deceived by falsehoods in their loan application form signed by Ha.
64 As with Dong, this time it was not only a new bank that was misled but it was an entirely new broker who Ha blamed. This time it was Huy who was said to have produced fabricated payslips and all the other pieces of misinformation. Why Ha changed banks and brokers was never satisfactorily explained but on the probabilities it was part a plan of creating a new trail to access loan funds without declaring what had gone before.
65 Ha’s science degree has been funded by a HECS debt. In spite of this standard of education she denied any real knowledge of taxation requirements regarding her employment, the source of cash savings, why a bank would require her monthly income and other matters in relation to bank loans for hundreds of thousands of dollars. On her evidence it was all the brokers’ fault that false information was provided. She denied any knowledge of how there were wage slips furnished and yet she agreed she signed the loan application documents.[19]
[19]CB 448-451,453, 470
66 When she was taken to the Austrac transactions recording overseas payments of money her evidence was similarly evasive and unpersuasive. Those records show that on 10 April 2013 she sent $15,075 to Vietnam, on 25th of April she sent $10,050 and on 2 May a further $15,075.[20] When faced with this she said she had received this money from someone in Vietnam by way of a loan or some other imprecise transaction and she was returning it. Again I found her evidence very unsatisfactory and improbable.
[20]CB 592
67 Looking further at her records I asked her about a $400,000 deposit on 12 June 2013 and a further $600,000 deposit on 15 June. She said this came from her brother via the Crown payouts. She said she went to Crown and they gave her a car to drive home in with $400,000 in cash on the first occasion and $600,000 in cash on the second. I cannot determine on the evidence whether or not this was true or why she was going to Crown to pick up such sums that she said were her brother’s money. I accept she did get this money from Crown but the different forms in which she was paid these three amounts seemed to me to probably smack of her trying to cover up something in a way that just adds to the scepticism I have about her evidence generally.
68 She was asked about Centrelink benefits she had received in spite of all this other money that she said she was earning and the funds she had for real estate purchases. In 2010 she received a little over $2232 from Centrelink youth allowance and by 2011 and in 2012 it had gone up to a little under $10,000 per year.[21] She was very evasive when asked about what she had told Centrelink about earnings and about her assets. The clear inference is that she provided some form of dishonest information in order to obtain these benefits and the increases that were almost fivefold over the course of her tertiary studies.
[21]CB 698,710
69 In a similar vein Australian Tax Office records indicate some earnings from Woolworths but none of the other income that she indicated she earned from the various other employers. There is no documentary evidence to support what she said about such other work. Surprisingly she had professional accountants acting for her with respect to her tax affairs.[22]
[22]CB 698,709,711
70 Perhaps most surprising of all of the deceptive evidence this witness gave, she claimed to know nothing about hydroponic equipment and what it was used for when she was asked about what the police found in the raid at Churchill Street where she lived. She told the Court that because equipment was in the garage she did not know about it. She then maintained she did not even know what hydroponic equipment was. When it was pointed out to her that her mother had been charged with respect to cultivating cannabis at the Norlane house in 2008 she volunteered she had gone to the lawyer’s office with her mother.
71 The clear inference is that there would have been some explanation about the crop house in Norlane and what the police found on that occasion with respect to the hydroponic set up. I consider she has been quite dishonest when she denied any knowledge of what her mother’s charges were when she herself attended with her mother at the mother’s legal conference and then at court. Risk of deportation was in the wind for her mother. Ha would have the court believe that she told her mother to plead guilty only because of the prospect of deportation without Ha having any knowledge of the charges or the details thereof. I just do not accept this evidence.
72 The probability is she knew full well the details of the charge her mother was facing and that it might trigger a sentence that raised the risk of deportation. This topic was another that indicated a witness who when faced with an uncomfortable question would in effect say anything to try and deflect the court from the truth.
73 As mentioned the evidence about the $1.1 million loan from her brother for the purchase of Devonshire Road has other curious features. This showed up in three amounts.[23] She said that $100,000 was transferred directly by Crown to her bank account on 11 June 2013. This was a CBA account. She said Crown would not do a bank transfer for the remaining amounts and she took $400,000 in cash the next day on 12 June 2013. For some reason this time it was paid into an ANZ account. Then on 17 June she then took a further cash sum of $600,000 from Crown. This time it was paid into a Westpac account.[24]
[23]CB 592
[24]CB 645
74 She was pointed to massive amounts of transfers of cash in a period of a little over one week between 17 June and 25 June 2013 across at least three different accounts in her name at CBA, ANZ and Westpac branches. Why these were being transferred in such amounts between accounts and between banks she said was possibly because of interest rate differences. I reject that reason as being improbable.
75 She was asked a number of times about such large cash movements. She said at different times that she liked to move cash because it feels like “you have power”, “makes you feel important” and “I like that feeling”.[25] None of these reasons were plausible in terms of legitimate movements of such large sums of money in anticipation of the purchase of Devonshire Road.
[25]T325,328-330
76 It remains that regarding the $105,000 loan from Phuong and the $1.1 million from Son there are no satisfactory documents or other written records of them. On the probabilities this money was not lawfully obtained.
77 Ha relied on “daily loans” or “day loans” to people who she said needed large amounts of cash quickly to apparently repay debts owed to people at Crown for I assume gambling losses. There is not a shred of paper supporting such amounts she said she was handing out regularly to people whose names I was not given. Her lengthy affidavit prepared by lawyers to support her case of explaining her wealth does not make any mention of these “day loans”.
78 There were other unexplained aspects of Ha’s wealth that have simply been left up in the air as it were. Just to take a couple of examples, she purchased an Audi car for $96,000 in the relevant period. Also she sent $133,009 to Vietnam as recorded by Austrac between 15 April 2010 and 11 October 2013.[26] Again these large sums have not been satisfactorily explained. Similarly a withdrawal of $200,000 when she was facing a large settlement on Devonshire Road in October 2013 saw her again give inconsistent answers as to why that occurred and where it went. Her answers were so vague as to be unreliable.
[26]CB 589
79 I had the opportunity of hearing and observing this witness over the course of several days evidence. I found her a very evasive, inconsistent and generally unsatisfactory witness. Her credit in my view was seriously impugned. She could not be relied on.
80 I do not accept on the probabilities her evidence about the acquisition of the loan and other funds in the way she described with respect to the three properties in her application. Indeed the evidence about how she obtained this money both by way of her own funds and broker sponsored frauds on the banks is improbable and I reject it.
81 The broker she referred to as “Huy” is Mr Huy Pham, the broker from St Albans. He answered a subpoena and was called by the applicants. He is an accredited mortgage broker and accountant. He did considerable harm to their case in contradicting everything that had been said by both Dong and Ha about the information in the two mortgage loan applications he was involved with.[27]
[27]CB 510-524,472-478
82 He was a forthright witness who gave his evidence in a straightforward and clear manner. Observing both his demeanour and hearing his evidence I accept him as a truthful and reliable witness. He not only gave evidence that all of the financial information for these loan applications was provided to him by Dong and Ha but he even produced documents that harmed their case. He produced a signed letter from the sister Phuong with ABN and other details that I infer was probably another false document that one or other of the applicants provided to him to access bank funds.[28]
[28]Exhibit H4
83 His evidence was not only that all the financials were given to him by the applicants but he also witnessed them sign the applications for loans after explaining the papers to them. In Dong’s case, he even translated the English in the loan application into Vietnamese for her.
84 Due to the fact that the next witness the applicants wished to call was in Vietnam and a video link organised by the court registry was still being arranged, I invited the respondent to commence its case by way of interposition. Sgt K Baulch from the Proceeds of Crime Squad gave evidence followed by the forensic accountant Mr J Roden.
85 Sgt Baulch identified her two affidavits and the exhibits thereto.[29] These are self-explanatory. They basically set out the information that led to police interest in Dong and Ha with respect to their wealth following a drug investigation that netted the subsequent conviction of Son. Essentially the witness relied on the forensic accounting material put together by Mr Roden.
[29]CB 415-524,796-828
86 Dong did not wish to ask any questions of this witness. Ha cross-examined her about a number of pieces of information that led the officer to become interested in the wealth of Dong and Ha but there was no further relevant evidence.
87 Mr Roden gave evidence and went through in detail the basis of his report about Dong which focussed on the period 11 April 2011 to 31 July 2013. His report is very detailed and speaks for itself.[30] I accept it. There is no point in going through at great length but I will briefly comment on some of the categories or areas that occupied his attention and some of his conclusions.
[30]CB 528-574
88 He found that she had net assets of $740,021, liabilities of $491,302 and thus a net asset result of $248,719.[31] He went through in detail each of the properties that she had purchased in that period. They were 22 Isabel Drive which was purchased for $254,000 and sold on 11 May 2013 for $280,000. The one at 6 Glinden Avenue was purchased for $325,000 with a CBA loan of $260,000 and $32,500 by way of cash.[32] He could not determine where the $32,500 came from. He reported that 665 Ballarat Road Ardeer was purchased for $311,404 by way of a Westpac loan and $45,000 in cash.
[31]CB 532
[32]CB 534-535
89 He looked at Dong’s withdrawals from ATMs, her other withdrawals and money from settlement of real estate and found $84,664 was indicated from those sources. But there was also an additional $113,974 by way of withdrawals.[33] The documents also indicated that in the period Dong had sent $85,329 to Vietnam which did not come from any of her multiple bank accounts.
[33]CB 536
90 He looked at her income from Centrelink in a somewhat broader period from July 2009 to June 2014. She had received $33,631 from Centrelink. From rental income he made an allowance based on the affidavit evidence about rent that she had received about $14,257 in the period he analysed. He looked at other deposits in her accounts. In total her deposits came to $525,867 which included cash deposits of $235,780 from her two daughters Phuong and Ha.[34]
[34]CB 537-539
91 He looked at the income she disclosed in her affidavit and totalled it up as coming to $68,200 but he could not verify the existence of such an amount in terms of its source.[35] In the end he concluded that Dong had in the period 11April 2011 to 31 July 2013 unidentified income of $175,497 and this was even allowing her $200 per week for child minding for Phuong. She had made cash deposits of $235,780 in the period.[36]
[35]CB 540
[36]CB 541-542
92 I accept Mr Roden’s analysis of Dong’s financial history and the acquisition of the two properties the subject of this application registered in her name. I am satisfied on the balance of probabilities Dong has acquired these properties unlawfully with unexplained wealth in terms of the Act.
93 Mr Roden did a similarly detailed report with respect to Ha. It is self-explanatory and again he had access to ATO records, bank records, real estate data and I will not go through each of these in any detail.[37]
[37]CB 578-648
94 The period he analysed was longer than the period he examined regarding Dong. He examined Ha from 15 April 2010 to 11 October 2013. I will just refer to a few matters in his comprehensive report and attached documents. In the period she gathered assets of $2,157,968. Her income from all sources in that period was $194,259. Included in that income figure he allowed over $47,000 by way of rental income even though this could not be sourced from any independent records and was based entirely on what Ha had said in her affidavit.
95 He analysed the purchases of a block of land at Fontana Drive Sunshine West in 2009 which was sold in August 2011 as well as the three properties the subject of her application being Forrest Street, Hilma Street and Devonshire Road. Accepting his report as I do, I am not satisfied that any of these properties were acquired from funds lawfully obtained.
96 In the course of his evidence he dealt with the $1.1 million Ha said she obtained by way of a loan from her brother, Son. Mr Roden confirmed that Crown can transfer funds electronically and by cheque. The first amount of $100,000 was transferred by Crown electronically. Why the very next day the $400,000 was taken from Crown in cash has simply not been satisfactorily explained. Similarly just why it was that $600,000 was taken in cash only five days later is a mystery. As stated already whatever the reason it is so unusual that I am prepared to infer some attempt by Ha at deception as to source. But I cannot reach a firm conclusion in any detail as to just what she actually hoped to hide in taking the risk of travelling with these very large sums in cash when the first $100,000 was transferred electronically. At least she avoided further electronic records.
97 Over the period Austrac records indicate Ha had transferred to Vietnam $133,009. Mr Roden could not determine the source of these funds.
98 His conclusions were that over the period he examined Ha’s records she held accumulated net assets of $1,589,701. To accumulate such assets she would have had to acquire funds of the order of $454,200 per annum. Yet over that period her total income from all sources including his generous allowance to her for rent was only $194,259. The funding of those assets of $1,589,701 was not derived from any identified income.[38]
[38]CB 593
99 Mr Roden also gave evidence about Crown casino gambling records with respect to Son.[39] These show prodigiously large amounts of gambling bets. On 14 June 2013 there were no less than 10 transactions in which tens of thousands of dollars were used as part of his “buy ins” for gambling purposes. In one period of an hour and 12 minutes he placed $924,000 in bets. In another period on the same day of an hour and 18 minutes he placed $819,000 in bets. Another period of 13 minutes on the same day saw him gamble $511,000.
[39]CB 652-661
100 That day saw an enormous amount of gambling activity by Son in terms of large deposits at Crown and massive gambling transactions.[40] It is the same month of course when Ha spoke of the three large amounts she said her brother gave her that reached $1.1 million. The probabilities are that across the eleven large cash deposits into his Crown account on that single day Son was dealing with unlawfully acquired money as meant by s 40G(1)(c) the Act. I infer that by gambling he was attempting to launder it and give it legitimacy.[41]
[40]CB 653,657,661
[41]CB 657
101 The accountant also did a detailed analysis of the other daughter, Phuong, and her financial state.[42] He looked at the total sales and expenses from her grocery business that the applicants relied on in relation to full-time employment supported by payslips and a letter from Phuong to the broker.[43]
[42]CB 806-818
[43]CB 523,524,Exhibit H4
102 The figures show very modest net income on her part being in 2011 $32,019, 2012 $27,858, 2013 $23,025 and in 2014 $30,776. There is no wage component or salary shown in the considerable list of expenses provided to the Australian Tax Office indicating any employment whatsoever let alone the sums of $55,000 allegedly being paid to Dong and to Ha from jobs at the grocery store. There is nothing by way of any papers that show a capacity to make a loan or payment of $105,000 by her to Ha for the purchase of Devonshire Road.
103 Mr Roden was cross-examined by Ha as Dong had declined to ask him any questions. His evidence was not in any way impacted on by the cross examination.
104 The court staff went to some lengths in arranging two video links to witnesses in Vietnam at the request of the applicants. The first witness was Dong’s brother, Ha’s uncle, Mr Nguyen Tang Thep. He gave evidence that he had purchased some land in Vietnam from Dong for $25,000 in 2012.
105 He said the undated letter that is Exhibit D3 came from him. He said he wrote that out a long time ago. Later on he said Exhibit D3 had been written in 2012. If that is correct, it was never made clear why it only surfaced during this trial and not in the lengthy affidavit Dong’s solicitors had prepared in 2016.
106 Other than this letter there is no documentary evidence to indicate the $25,000 he spoke of which he said for some reason had been paid in three different sums. He also said he had given Dong a receipt but no details were provided. No receipt has been given to the court.
107 Looking at all the evidence I did not accept this witness as reliable or accurate as best I could assess him in terms of the limitations a video link inevitably provides. He struck me as rather evasive. In any event he did not provide any acceptable evidence that led to any proof of the lawful acquisition of the funds involved in the two subject properties in Dong’s application.
108 The next witness to give evidence by video from Vietnam was Nguyen Viet Minh. He said that in 2009 or 2010 he bought a piece of land from Dong. The purchase price for this was not converted by anyone into Australian dollars. He said he did not remember any written evidence or record of the transaction. He said Dong asked him to write a letter about the land but that was “pretty long ago” and was back when he bought the land. This evidence was all very vague and did not take Dong’s application any further in terms of proofs.
109 Dong’s daughter and Ha’s sister, Phuong, was the next witness by video. She gave evidence that she operated the grocery store that has been mentioned. Phuong’s full name was Nguyen Thi Phuong. She said that she lent Ha $105,000 for the purchase of Devonshire Road in 2013 but said there were no documents supporting this.
110 When asked about employing her sister in the grocery store she said she had employed her but did not pay her at the start. In 2011 she said she did pay some salary in a lump sum but did not report it to the ATO. Phuong was asked about the payslips and representations to the bank that her sister earned $55,000 per year or so at the store. She said Ha had never worked to that extent. She had no knowledge of who provided the payslips. As to Exhibit H4, the signed letter purportedly from Phuong that the broker said he had obtained describing Dong as working full-time as a store person and earning $2115 gross per fortnight, the witness denied any knowledge of this letter.
111 I find her evidence improbable. It is more likely on the whole of the evidence that Phuong either did supply this Exhibit and the payslips with ABN numbers and other grocery store details on them. Alternatively she allowed her mother and sister to use such false documents with all the grocery store details in order to deceive banks about so-called employment.
112 These witnesses from Vietnam were interposed in Mr Roden’s evidence and the next person called was Ha’s boyfriend Tu Phan Nguyen. He has been variously picked up on the transcript as “Pham” rather than “Phan” but it is one and the same gentleman. I made it clear to the applicants days ago that if he was to be a witness then he should prepare a statement for the purposes of the respondent considering it before he was called. A statement was handed up and tendered by Ha as Exhibit H5.
113 Apparently he has been Ha’s partner for the last eleven years. The Exhibit is really more of a reference as to work ethic than evidence directed to any documentary basis of accumulated wealth. As a witness he was very argumentative and quite sarcastic at times when cross examined but much more importantly I found his evidence quite improbable. To take just one example, he agreed his home was the Churchill Avenue house where the police raided and found a great deal of hydroponic equipment and cannabis in the garage that led to Son’s plea and sentence. Phan denied any knowledge of what was in the garage. He even said he had never been in the garage.
114 Also he provided no employment details or earnings of his own. He spoke about his own income which he gave to Ha. I have no idea what that income was or its amount. There were no records of this he said. That was because: “I have always given her my income too. We do not keep record of this. It is our symbol of relationship, keep the record will make us feel apart.”[44]
[44]Exhibit H5
115 I found his written statement and oral testimony, after the benefit of seeing and hearing him in the witness box, as no more than an attempt to shore up his girlfriend’s case by trying to justify unexplained wealth that was not supported by any acceptable written evidence.
116 In a similar vein, after he was cross-examined Ha attempted to ask him questions about the so called “day loans” when nothing had been said about these in his statement. It was close to the luncheon adjournment and I made it clear that if he wished to say anything further and additional to his original statement, he would need to prepare a further statement so Ms Ruddle could consider it before I allowed any further fresh topics to be covered. I had made it clear several days ago that this would be required if Phan was to be called.
117 A further handwritten statement from him was handed up after lunch.[45] I arranged for it to be photocopied and stood the matter down so the respondent could consider it. The further statement dealt with the “day loans” and Son’s drug convictions but in an eleventh hour way that was no more than an effort to plug more holes in the Applicants’ cases. He was then recalled. Phan was asked further questions but his credit remained such that I reject his evidence as improbable and unreliable in regards to the sources of the wealth of the applicants.
[45]Exhibit H6
118 I checked more than once whether any other witnesses were to be called by Dong and Ha. In particular the other broker used to obtain bank loans, Tuan, who was the subject of a short service subpoena order was referred to. I left court so Dong, Ha and Phan could all consider this. They did wish to call Tuan. Again I left the bench so they had time to reach a final decision about him. [46]
[46]T 588-590
119 I gave a similar invitation more than once about whether they wished to call Ha’s elder brother by video from Vietnam. Again I left the bench so they could discuss more freely amongst themselves whether they wanted him.[47] This invitation is discussed more fully later. He was not called.
[47]T 606-608, 609, 611-612
120 I will now deal with the documents tendered by the applicants.[48] D1 comprises documents with respect to Dong’s health and they are not relevant to the task before me. The undated figures and Vietnamese writing in D2 were said to involve the Hui investments scheme that has never been adequately explained. I indicated in the first week of the trial I would need someone to translate and explain what these handwritten figures meant in the context of this case.[49] I was told that a Hui organiser from Melbourne was to be called to do just that. That person was never called so the Exhibit is meaningless.
[48]Exhibits D1-D5,H1-H7
[49]T251-252
121 D3 and D4 were the two undated handwritten letters with their attached translations written by two of the witnesses heard on video from Vietnam. The two letters seem to be written on identical note paper. I have already dealt with these letters in the remarks I have made about those witnesses.
122 D5 and H1 are the affidavits of Dong and Ha and I have already explained the reasons why I do not accept their evidence in affidavit or oral form as to explanations of their wealth. H2 is a set of ATO papers dated 3 March 2017 about some 2017 repayment plan Ha has regarding a few hundred dollars owed to the tax office. It has no relevance.
123 Nor does H3 which is a Google extract about some conviction of an unregistered money remitter which is not shown on the evidence to have any link to the particular financial transactions of Dong or Ha. It also contains a copy of a Notice of Meeting of Creditors of a company in May 2016 that does not assist in any way.
124 H4 is the letter of 16 July 2012 from the sister Phuong concerning the false allegation of employment at her grocery store given to the broker to pass on to the bank. I have already dealt with this issue. H5 and H6 are the two undated statements from Ha’s boyfriend Phan which I have also dealt with.
125 H7 is a copy of some financial statements for the year 2011 of the Nam Son Transport and Commerce Company in Vietnam. On the evidence I infer this is the elder brother’s company but again the existence of that company in 2011 does not advance the application.
126 Apparently that man was to give evidence on video link following the three witnesses who gave evidence from Vietnam on 16 August. The court sat late that day and then the video link failed so I said he could be called on video link on 17 August or 18 August if desired by the applicants. Arrangements were made with the court at the Melbourne end to facilitate this. But for some reason that never became entirely clear to me he was never in fact called on either of those days in spite of my offering the court video link several times.
127 On Friday 18 August I further invited Dong and Ha to contact the brother in Vietnam to see whether or not he would be available to give evidence on the next hearing date of 28 August. That next hearing date had to be allocated because counsel for the respondent was out of the jurisdiction and unavailable from 18 August until 28 August.
128 I left the bench after making it clear that if the applicants wished to call this witness then the video link at the court was available for 28 August and if they did not call him then that would be the end of the evidence with only final submissions remaining. When I returned to court both Dong and Ha indicated they did not wish to call this gentleman.
129 In view of this situation Exhibit H7 cannot be given any weight as it is unexplained in terms of its relevance to the financial position of the applicants.
130 H8 is an internet search headed “Find the Company” regarding Mr Ahn Tuan Pham. On the face of it, that document indicates this broker who was not called had got into some trouble in terms of his financial business. I cannot give this any weight as it is not shown as being linked in any way to the mortgage loan applications before me in this case. Similarly Exhibit H9 is a Google search of some group called the Mortgage Finance Association of Australia (MFAA) about this man’s cancelled membership registration. It reported that cancellation because he put false information to a lender about employment with a company he was a director of. There is no suggestion this had anything to do with the Dong and Ha loan applications.
131 Tuan was the other broker who was the subject of one of the short service subpoena orders I made in the first week of the trial but he was never called. I enquired of the applicants as to whether they wanted to take the matter any further with respect to this man but they did not. I cannot speculate about what he would have said if asked about the exhibits H8 and H9 nor about his dealings by way of mortgage loan applications involving Dong or Ha.
132 I was just left with their evidence that he along with the broker who was called, Huy, simply went on a frolic of his own and made up the false financial information put in mortgage application forms. As I have already said when Huy was called his evidence was totally opposite to the version given by the applicants. In the end I cannot give any weight to H8 or H9 as it is pure guesswork whether or not the trouble Tuan seems to have got into with the authorities had any connection whatsoever with the applicants’ mortgage loan transactions.
133 At the close of evidence on 18 August, at my invitation Ms Ruddle gave a copy of written final submissions to the court and to the applicants. It was explained that that this was to give them the opportunity over the next week to look at what the respondent was going to say and to prepare better for what they wished to tell the court on 28 August in final addresses.
134 On 28 August both parties made oral submissions. Also written submissions from Ha on behalf of both applicants were supplied. For completeness I will attach both parties’ written submissions to this judgement. I have considered them both in detail.
135 As well as the reasons I have set out in my remarks above, I also accept the submissions on behalf of the Respondent as to why the applications should be dismissed.
136 After hearing final submissions from all parties I am not satisfied any of these five properties were lawfully acquired. I have taken into account all the provisions of the Act including s40G in relation to lawful acquisition. Both applicants have failed to discharge the onus on them under the Act. They have failed to provide documentary or other evidence that would support their claims that the properties were lawfully acquired. The exclusion applications are dismissed.
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