Tran v Commissioner of the Australian Federal Police

[2014] VCC 2044

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
Not Restricted
 Suitable for Publication

CONFISCATION LIST

Case No.  CI-11-01892

IN THE MATTER of the Proceeds of Crime Act 2002 (Commonwealth)

-and-

IN THE MATTER of the conviction of PHUONG THI LAN TRAN of a “serious offence” as defined in the Proceeds of Crime Act 2002 (Commonwealth)

PHUONG THI LAN TRAN	Applicant
v
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Respondent

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 18 November 2014
DATE OF JUDGMENT:	12 December 2014
CASE MAY BE CITED AS:	Tran v Commissioner of the Australian Federal Police
MEDIUM NEUTRAL CITATION:	[2014] VCC 2044

REASONS FOR JUDGMENT
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Subject:    PROCEEDS OF CRIME   

Catchwords:              Application pursuant to s94 and 94A of the Proceeds of Crime Act 2002 (Commonwealth) – applicant registered as proprietor of real property, and various items of jewellery – whether the applicant’s interest as a result of unlawful activity – whether applicant’s interest in the property lawfully acquired

Legislation Cited:      Proceeds of Crime Act 2002 (Cth), s5, s17, s29, s30, s92, s94, s94A, s329, s330, s338; Proceeds of Crime Act 1987 (Cth); Criminal Code (Cth), s302(4), s400.4(2); Confiscation Act 1997; Crimes Act 1900 (NSW), s192E; Transfer of Land Act 1958, s74(2)

Cases Cited:Director of Public Prosecutions v Tran & Anor [2013] VCC 1510; Director of Public Prosecutions (Cth) v Jeffrey (1992) 58 A Crim R; Markovski v Director of Public Prosecutions [2014] VSCA 35

Judgment:  Jewellery forfeited.  Real property excluded from forfeiture.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R O’Neill	Haines & Polites
For the Respondent	Mr E G De Zilwa	Proceeds of Crime Litigation – Australian Federal Police

HIS HONOUR:

Preliminary

1 This is an application pursuant to s94, alternatively s94A, of the Proceeds of Crime Act 2002 (Commonwealth) (“the Act”) for an exclusion order in relation to various items of real and personal property of which the applicant is the proprietor, being real property at 382 Elizabeth Street, Mount Pritchard, New South Wales (“the Mount Pritchard property”) and various items of jewellery (“the jewellery”).[1]

[1]The items of jewellery are as set forth in a spreadsheet appended to this Judgment – Appendix “A”

2 Restraining Orders pursuant to s17 of the Act in relation to the Mount Pritchard property and the jewellery, were made on 29 April 2011 and 20 August 2013, upon the application of the Commissioner of the Australian Federal Police[2] (“the Commissioner”).  An exclusion application pursuant to Division 3 of the Act was filed by the applicant on 19 September 2014.

[2]The Commissioner is the responsible authority under the Act in respect of the proceeding.

3        On 7 October 2013, before this Court,[3] the applicant pleaded guilty to one charge of trafficking in a controlled drug contrary to s302.4 of the Criminal Code (Commonwealth) and sentenced to a term of imprisonment of three years, to be released on a recognisance after having served two years on an undertaking to be of good behaviour for a period of two years. There is no issue this is a “serious offence” within the meaning of s338 of the Act. As such the property the subject of the Restraining Orders is, prima facie, subject to automatic forfeiture pursuant to s92 of the Act.

[3]Reasons for Sentence of his Honour Judge Allen Director of Public Prosecutions v Tran & Anor [2013] VCC 1510 (7 October 2013)

4        By agreement, the parties accepted various items of jewellery found at the applicant’s premises would be excluded from forfeiture.[4]

[4]Items referred to in Schedules 1 and 2 of Consent Orders made 18 November 2014

5        The applicant bears the onus, on the balance of probabilities, to prove the property and the items are neither the proceeds of unlawful activity, and further, that her interest in the property and the items was lawfully acquired.

6        In support of the application, the applicant (“Ms Tran”) filed the following affidavits which were admitted into evidence:

·        affidavits of Ms Tran affirmed 21 February 2014, 13 March 2014 and 16 October 2014;

·        affidavit of Mr Robert Hoang affirmed 14 March 2014;

·        affidavit of Mr Van Hai Nguyen affirmed 13 March 2014;

·        affidavits of Mr Vincent Nguyen affirmed 24 February 2014 and 13 March 2014;

·        affidavit of Ms Thu Van Tran (the applicant’s sister) affirmed 23 October 2014;

·        affidavits of Ms Tranh Thi Pham (a Vietnamese interpreter) affirmed 17 October 2014 and 24 October 2014.

7        Ms Tran, Messrs Vincent Nguyen, Van Nguyen and Hoang were called to give evidence and were cross-examined.  Ms Thu Tran was cross-examined via videolink.

8        On behalf of the Commissioner, the following affidavits were sworn and tendered into evidence:

·        affidavit of Emily Nicholson sworn 18 September 2014;

·        affidavit of Brett Charles McAuliffe sworn 18 September 2014;

·        affidavit of Sourina Simmalavong sworn 18 September 2014;

§  affidavits of Ljubo Gec sworn 16 September 2014 and 30 October 2014;

§  affidavits of Mr Michael Walsh sworn 9 October 2014 and 31 October 2014.

Mr Walsh was called to give evidence and was cross-examined.

The Applicant’s evidence and supporting material

9        Ms Tran was born in Vietnam in 1970 and came to Australia in February 1992.  She worked in various areas of employment, including in restaurants, as a nails technician, and as a sewing machinist.

10       She claimed the various items of jewellery were either:

·        gifts from various persons, including her former husband, and others with whom she had a relationship;

·        purchased by her from money gifted to her by various persons;

·        purchased by herself; or

·        inherited from her mother or grandmother.

11       She denied that any of the items of jewellery had been unlawfully acquired and none acquired from the proceeds of any unlawful activity.

12       In relation to the Mount Pritchard property, Ms Tran signed a contract to purchase the property on 28 May 2010.  The purchase price was $456,000.  She paid a deposit of $45,600, and the part of the balance was provided through a mortgage loan of $350,000 from the Bank of Western Australia Limited (“Bank-West”).  Settlement of the purchase took place on 9 July 2010.  On 12 May 2010, a transfer of AUD 99,600 was made by Ms Tran’s sisters and brothers in Vietnam.  This sum was deposited in Ms Tran’s Commonwealth Bank account.  The money was said to be Ms Tran’s entitlement to a family inheritance out of her parents’ Estate, and the other members of her family all agreed that the money would be provided to assist her in the purchase of real estate in Australia.  The transfer of the funds and the purchase of the property are all supported by various documents annexed to Ms Tran’s affidavits.[5]

[5]See Exhibits PTLT1-PTLT5 to the affidavit of the applicant affirmed 13 March 2014

13       Further, an interpreter’s affidavit[6] annexed a document “Application for Certification”.[7]  That document appears to be some form of certification that the sum of AUD 99,000 was sent to Ms Tran in Australia.  That document is certified to be true and correct by a Mr Vinh Thi En on 8 October 2014.  It is difficult to understand precisely the meaning of this document, and what the certification purports to be.

[6]Affidavit of Tranh Thi Pham affirmed 24 October 2014

[7]Exhibit TTP-B to the affidavit of Tranh Thi Pham sworn 24 October 2014

14       After settlement of the property, Ms Tran was required to make mortgage payments of $2,100 per month.  She said her friend, Mr Vincent Nguyen, and her son, Mr Hieu Nguyen, moved into the property and each contributed $800 per month towards the mortgage.  She repaid the balance due from her Newstart Allowance, and from $100 to $200 per week she was able to earn from making and selling clothes.  Her son had fish tanks in the garage of the property, and bred and sold fish to local aquariums.  Since her incarceration, others have moved into the property and contributed to paying the mortgage.

15       Ms Tran was cross-examined.  She acknowledged that in 2001, police raided her premises, and a total of $27,300 in cash was seized.  She denied this cash was the proceeds of the sale of drugs.  She explained that this money was borrowed for the prospect of her son to establish an aquarium business breeding and selling tropical fish, including the renting of business premises.  She acknowledged that in none of the three affidavits in support of this application, was there any reference to this explanation.

16       It was pointed out that on the day of the hearing, her counsel withdrew the application to exclude the cash from forfeiture.  Ms Tran said that she wanted to ask for the money back, but received legal advice that it was difficult to prove it was her money.  She took this advice as she wished the application to be finalised as soon as possible.

17       Ms Tran was questioned about the sentencing remarks of his Honour Judge Allen made on 7 October 2013, in particular, the comments that on three occasions, Ms Tran arranged for an accomplice, Ms Quach to travel from Sydney to Melbourne to sell heroin, as a result of which an amount of $65,000 was given by Ms Quach to Ms Tran as the proceeds of sale.  His Honour further noted that had all of the transactions been successful, Ms Tran could have expected to receive approximately $203,000.

18       Ms Tran disagreed with these findings and denied ever receiving anything like $60,000 from the proceeds of the transaction.  Instead, she said that her involvement came about because Ms Quach did not have credibility with those to whom the drugs were to be sold.  She denied having to pay money for the drugs which she subsequently sold.  Out of the whole transaction, she said she obtained only $6,000.  I observe that this explanation stands in stark contrast to the findings of his Honour Judge Allen and was not the subject of any explanation in the various affidavits filed on her behalf.

19       Ms Tran said that in 1986, she married Van Hai Nguyen in Vietnam and divorced in 2001.  The couple purchased a property at 12 Stonehaven Parade, Cabramatta (“the Cabramatta property”).  That property was transferred into her name in an “informal” property settlement around 2002.  Over the period from 2002 until the death of her mother in September 2006, Ms Tran returned regularly to Vietnam to care for her mother as she was ill.  Because of this travel, she claims not to have been able to meet the mortgage payments, and the Cabramatta property was sold by mortgagee’s auction in 2007.  Before the mortgagee’s auction, she said she refinanced and obtained sufficient further money to enable her to travel back and forth to Vietnam.  She claimed that when the property was eventually sold, the purchase price was only sufficient to pay out the mortgage.

20       Ms Tran said that over the period from 2002 until 2007, she was unemployed and received unemployment or social security benefits.  In addition, she earned up to $200 a week working as a nail technician, or undertaking sewing from home. 

21       Ms Tran was taken to her bank account records.[8]  The records show that on 24 May 2010, a credit of $99,200 was received into her “Streamline Unlimited [bank] Account”.  This, she said, was the transfer of her inheritance money from Vietnam.  On 28 May 2010, a further amount of $6,300 was paid into her account.  She said that she thought this was from a pool of money raised by the Vietnamese community which provided assistance to Vietnamese migrants in Australia.  She acknowledged that there was no explanation of this in her affidavits.  Various withdrawals around that time were related to the purchase of the Mount Pritchard property. 

[8]See Exhibit LG02 to the affidavit of Ljubo Gec sworn 30 October 2014

22       As to a cash deposit on 31 May 2010 of $25,000, Ms Tran said the sum was part of the proceeds of the refinance of the Cabramatta property some years earlier.  She said that she spent some of the money returning to Vietnam to see her mother, and saved the rest.  At that time, she decided to put that money into the bank. 

23       She was taken to her earlier evidence where she said that there was no money left over after the sale of the Cabramatta property.  She denied that any of this money was the proceeds from the sale of drugs.

24       In relation to the $27,000 in cash found in her property at the time of the police raid, she confirmed that this was a loan from her great-uncle in Vietnam to assist her son in the establishment of his aquarium business.  There was no reference to this in her affidavits.

25       On regular occasions over the months May to September 2010, Ms Tran withdrew sums of $1,000 from her account.  The withdrawal of these amounts stands in contrast to Ms Tran’s evidence that she was not working, and in receipt of government benefits, save for up to $200 per week for sewing and nail technician work.  She said that she would go to various RSL Clubs, or the casino, and gamble with this money.  Occasionally, she lent money to friends to enable them to gamble, and was later repaid.  Various further withdrawals of $16,030 (24 June 2010) and $10,000 (5 July 2010), she said were sums of money paid to her solicitor to assist in the purchase of the Mount Pritchard property.

26       A deposit of $7,558 was described by Ms Tran as her “happy money”.  This was money she won at the gambling clubs.  The withdrawal of $52,127.37 on 8 July 2010 was put towards the Mount Pritchard property.  A cash deposit of $4,000 on 15 September 2010 related to a withdrawal of $1,000, which was then provided to friends, who won at the gambling clubs and paid the money back to her.

27       Ms Tran was then taken to the application she submitted in support of the mortgage loan from Bank-West.[9]  According to that application, Ms Tran said that she lived with her parents and was a full-time sewing machinist working for a company, H&E Anderson Bros Dry Cleaners.  The application form said she had been working for that employer for two and a half years, and received a gross salary of $65,000.  The application had attached two payslips from H&E Anderson Bros Dry Cleaners, setting out Ms Tran’s wage.  It was pointed out to her that these assertions were blatantly false.  She said in explanation that the mortgage application form was completed by a finance adviser, Mr Henry Tran.  He told her when she raised the issue that the bank was not interested in details of her employment and if the loan was not repaid, the bank would sell the property.  Mr Tran told her that lots of people were doing the same thing.  Ms Tran said that she could not read English, and the application form was not translated for her. 

[9]Part of Exhibit LG02 to the affidavit of Ljubo Gec sworn 16 September 2014

28       Ms Tran was cross-examined as to various items of jewellery.  In relation to item 7 (EMU177246012), an 18-carat white gold ring valued at $10,440, she said that she purchased the ring for $4,000 from her savings.  She had another diamond ring, which she traded in, plus some cash.  She acknowledged that there was no such explanation given in her affidavits.  She said she obtained this money from her work as a nail technician, and from working in a number of restaurants.

29       In relation to item 1 (EMU177246014), an 18-carat white gold bangle valued at $16,130, Ms Tran said that she purchased this for $6,000 from a lady in a casino.  She said, contrary to her affidavit, that in fact she purchased it for $3,000.  That $3,000 she won gambling in a casino in 2004.

30       In relation to item 3 (EMU177246034), an 18-carat diamond ring valued at $23,280, Ms Tran said she purchased that ring for $4,000.  She was given a gold necklace from a former fiancé, Binh Luu, a wealthy businessman.  She sold the necklace to purchase the ring.  Again, there was no such explanation in her affidavit.

31       The applicant’s sister, Ms Thu Van Tran (“Ms Thu Tran”) affirmed an affidavit of 23 October 2014, and was cross-examined by videolink.  She said her father passed away in 1980, leaving gold and property to the family.  Her mother died in September 2006, also leaving gold and property and rather than splitting her inheritance between the five children, the inheritance was pooled to the benefit of all of them.  Decisions about the distribution of the inheritance were made by the members of the family. 

32       Ms Thu Tran said, in early 2010, her sister contacted her and said she was looking to purchase a house in Australia and needed assistance to pay the deposit.  Her family considered the matter, and it was agreed the equivalent of $90,000 AUD would be transferred to Ms Tran.  This was undertaken on 12 May 2010.  Her elder sister, Ms Thi Thu Van Tran, took the money to the Hai Ha Money Transfer Company in Ho Chi Minh City, Vietnam.  She said other members of the family had borrowed money from the pool.  She said various items of her mother’s jewellery were passed to Ms Tran as she was the youngest daughter in the family and had a close relationship with her mother.  This jewellery included bangles, rings, pendants, earrings and other jewellery. 

33       In evidence, she explained the certification document[10] was brought into existence to certify money had been sent from Vietnam to Australia for Ms Tran.  The amount sent to Australia was raised through the sale of gold.  She could not recall the name of the shop through which the gold was sold.

[10]Exhibit TTP-B annexed to the affidavit of Tranh Thi Pham

34       Mr Vincent Nguyen affirmed two affidavits and was cross-examined.  He was born in Vietnam in 1959, and came to Australia as a refugee in 1984.  He met Ms Tran through a friend and moved into a shared house with her in 2007 and remained living with her until the purchase of the Mount Pritchard property.  He continued to reside at that house until February 2014.  He has worked part time for a real estate firm.  In 2011, he provided approximately $28,000 to Ms Tran to enable her to purchase a white gold bracelet consisting of nine brilliant diamonds (Item 4 – EMU177246014).  He said the money came from the sale of a business owned by himself and his former wife.  The business had been purchased in 2005, and his former wife sold it for about $83,000 around 2008.  She gave him $40,000.  He loaned that money to various people and charged an interest rate of 2 per cent.  The loans were made on the “black market”. 

35       He also provided approximately $11,500 to Ms Tran so that she could purchase ear studs (Item 3 – EMU177246016).  He could not recall the name of the shop where the jewellery was purchased but thought it was in Cabramatta.  He said that while living in Sydney over the period from 2006 to 2011, he was not in full-time work.  He made no money from his involvement in the real estate business.  He sought a long-term relationship with Ms Tran, but things did not work out.  He gave her the two large amounts of money in an attempt to please her and win her favour.  He confirmed that he and Ms Tran’s son assisted her in paying the mortgage on the Mount Pritchard property.  They would each pay $200 per week and deposit the sum into her bank account. 

36       Mr Van Hai Nguyen (“Mr Van Nguyen”) affirmed an affidavit of 13 March 2014, and attended Court to be cross-examined.  He was married to Ms Tran in 1986 in Vietnam and they divorced in around 2001.  In relation to various items of jewellery:

·Item 2 – EMU177246014 – white gold bangle consisting of 14 brilliant cut diamonds.  He said this item was purchased around 1996 or 1997, although he could not remember the store from which it was bought.  He gave $7,000 to Ms Tran to purchase it.

·Item 1 – EMU177246015 – 18-carat white gold pendant.  He said he gave the money to Ms Tran to purchase this item in 2002 or 2003.  Again, he could not recall the name of the store.

·Item 1 – EMU177246034 – 18-carat white gold ring.  He said this ring was purchased by Ms Tran from money he gave her in 2003 or 2004 as part of an “informal” property settlement.  He could not recall how much the ring cost.

37       After their divorce in 2001, he remained in contact with his son, whom he would see possibly once a month.  After the arrest of Ms Tran, he moved into the house to help look after it and to pay rent to help her.  Their son went to Vietnam to live with Ms Tran’s family.

38       He said that when the couple came to Australia, they brought some money which they had in the refugee camp.  He knew she loved diamonds.  He was able to save $4,000 to $5,000 dollars from working, and gave her that money to purchase the jewellery.  He worked part time as a presser in a clothing factory, earning $200 per week.  He denied that the source of any of this money was from the sale of drugs. 

39       Mr Robert Hoang affirmed an affidavit of 14 March 2014 and attended to be cross-examined.  He moved to Australia in approximately 2000 and worked as a delivery and forklift driver on a casual basis.  He met Ms Tran in 2002 at a social gathering and became her boyfriend.  In relation to the 18 carat white gold solitaire ring (Item 1 – EMU177246012) he said he purchased this ring for Ms Tran in August 2005 as a birthday present.  He purchased it from a jewellery shop in Cabramatta and paid approximately $22,000.  He said he saved this money from what he earned at work.  In the work he did as a driver, he earned about $500 cash in hand working four days a week.  He saved the money over a year or two.  He was in love with Ms Tran and did not regard the ring as expensive.  He has been living at the Mount Pritchard property for a year, and paying rent into her account every month. 

40       Various affidavits were filed on behalf of the Commissioner.

41       Mr Walsh, jewellery Valuer, provided a Certificate of Valuation in respect of all of the various items of jewellery seized by the authorities.  He said that the basis of the valuation was the cost to replace each item.  The assessment of that cost involved identifying the weight and quality of the jewel or jewels involved, and the weight of the precious metal used.  An assessment was then made of the labour necessary to make up the item of jewellery.  He acknowledged that there was a significant mark up between the manufacture cost and the retail sale price of jewellery, lower at the items of lesser value, and higher at the items of greater value.  He accepted that the price of gold had increased substantially between 2001 and 2011.  He also accepted there had been an increase in the value of diamonds over that period, although he could not say whether it had been significant.  His assessment was based upon the value and replacement costs of jewellery in Australia.  He accepted that an item, for example purchased in 2001, may have a very different value in 2011, when he undertook his valuation.  He agreed that when sold at auction, the value of items of jewellery may vary greatly to the cost of replacement.

Assessment of the evidence of the various witnesses, and the credibility of the Applicant

42       I find Ms Tran a witness upon whose evidence I could place little reliance.  I found her evidence comprehensively unsatisfactory and lacking in credibility.  I say that for the following reasons:

·Despite her plea of guilty to the charge of trafficking in heroin, and the sentencing remarks of his Honour Judge Allen of October 2013,[11] Ms Tran disavowed almost every aspect of her wrongdoing and said her involvement in the drug trafficking was only to act as an intermediary in a crime in which there were other persons who bore far more responsibility, in particular Ms Quach.  Even accepting an accused person may not accept all of the agreed facts in a prosecution opening, and the Judge’s summary of the circumstances in order to attain a negotiated resolution of charges, nonetheless her denial of any significant involvement in the offending is in comprehensive contrast to the agreed facts and Judge’s sentencing remarks. 

[11]Supra

·Her explanation of the falsity in the completion of the loan application is entirely unsatisfactory.  Even accepting she does not read and write English, and the loan application was prepared with the assistance of a finance broker, from her evidence it would appear that a significant misrepresentation was made in order to gain the loan; that is, that she was working in full-time employment.  Her explanation, that the broker told her this was a regular occurrence, is unbelievable. 

·According to the reasons of the sentencing Judge, and the submissions made by the applicant’s counsel in the criminal proceeding, Ms Tran entered drug trafficking because of serious financial difficulties which flowed on from repossession of a house in 2007.  Her evidence before this Court was that her only source of income was government benefits, together with an amount of up to $200 per week from her work as a nail technician, and seamstress.  This evidence stands in strong contrast to the following:

§   The significant withdrawals of cash from her bank account between May and September 2010 which was used in gambling venues;

§   The gifts of large amounts of cash she received from various admirers which was used for the purchase of jewellery; and

§   The large amounts of cash she herself used to purchase various items of jewellery.

·Ms Tran’s unsatisfactory explanation of significant quantities of cash being placed into and then withdrawn from her bank accounts over the period from May to September 2010.  I accept that in some cases the funds were used to assist in the purchase of the Mount Pritchard property but I am not satisfied that all those sums were so used.  Her explanation that she withdrew money to give to friends is patently unbelievable.

·Her explanation that the sum of $6,300 deposited into her account on 28 May 2010 was from the local community is unbelievable without any confirming documentation. 

·Her explanation of the deposit of $25,000 in cash on 31 May 2010 as monies left over from the refinance of her property years earlier is comprehensively implausible.

·Her explanation that the $27,000 found in cash in her premises at the time of the police raid was a loan from a great uncle to be used in the purchase of an aquarium business for her son is unbelievable, given no such explanation was ever provided in her three supporting affidavits.  Further, there is no confirmation from any source in relation to such a loan.

·Her explanation for her ability to acquire large and expensive items of jewellery, or the gift of cash to enable her to purchase such items is without merit.  There is little in the way of documented source for the funds or the identity of the shops, institutions or persons from whom the items were obtained.  Her explanation on one occasion that she paid $3,000 to “pawn” a ring from someone at the casino is extraordinary.

·Regularly Ms Tran answered questions in cross-examination by giving a long and unresponsive explanation, attempting at all turns to deflect any blame or responsibility from her criminal offending.  I found her a thoroughly unsatisfactory witness. 

43       I also found the evidence of other witnesses called on her behalf unsatisfactory.  This included the various gentlemen with whom she had relationships going back over many years.  It is incomprehensible how those gentlemen, all in receipt of only modest salaries, were able to afford expensive gifts of cash or jewellery.  It is further incomprehensible as to how many now come to be living at the Mount Pritchard property, and assisting Ms Tran by paying rental towards her mortgage. 

44       I am unable to place great reliance on the evidence of any of these persons.

Legislation

45 Section 5 of the Act sets out the principal objects, including:

“(a)to deprive persons of the proceeds of offences, the instruments of offences and benefits derived from offences, against the laws of the Commonwealth …

(b)…

(ba)to deprive persons of unexplained wealth amounts that the person cannot satisfy a court were not derived from certain offences;

(c)to punish and deter persons from breaching laws of the Commonwealth …

…

(e)to enable law enforcement authorities effectively to trace proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts … .”

46 Section 29 of the Act provides, relevantly:

“(1)The court to which an application for a restraining order under section 17, 18 or 19 was made must, when the order is made or at a later time, exclude a specified interest in property from the order if:

(a) an application is made under section 30 or 31; and

(b)     the court is satisfied that the relevant reason under subsection (2) or (3) for excluding the interest from the order exists;

(2)The reasons for excluding a specified interest in property from a restraining order are:

(a) for a restraining order under section 17 if the offence, or any of the offences, to which the order relates is a serious offence – the interest is neither proceeds nor an instrument of unlawful activity; or

(b) for a restraining order under section 17 if paragraph (a) does not apply – the interest is neither proceeds nor an instrument of the offence, or any offence, to which the order relates; or

(c) for a restraining order under section 18 – the interest is neither:

(i)in any case – proceeds of unlawful activity; nor

(ii)if an offence to which the order relates is a serious offence – an instrument of any serious offence; or

(d) for a restraining order under section 19 – the interest is neither:

(i)in any case – proceeds of an indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern; nor

(ii)if an offence to which the order relates is a serious offence – an instrument of any serious offence

… .”

47 Section 30 of the Act provides:

“(1)A person may apply for an order under section 29 or 29A if a restraining order that could cover property in which the person claims an interest has been applied for, but is yet to be made.

(2)The person must give written notice to the responsible authority of both the application and the grounds on which the exclusion is sought.

(3)The responsible authority may appear and adduce evidence at the hearing of the application.

(4)The responsible authority must give the person notice of any grounds on which it proposes to contest the application.”

48 Division 1 of Part 2.3 of the Act provides for forfeiture of property on conviction for a serious offence. There is no issue in the present proceeding that the offence for which Ms Tran was sentenced in October 2013 is a “serious offence” within the meaning of the Act. Section 92 provides for the forfeiture of property at the end of an applicable period after a person has been convicted of a serious offence. Section 94 provides for exclusion of property from forfeiture. The section says:

“(1)The court that made a restraining order referred to in paragraph 92(1)(b) must make an order excluding particular property from forfeiture under this Part if:

(a)     a person (the applicant) has applied for an order under this section; and

(b)     the court is satisfied that the applicant has an interest in property covered by the restraining order; and

(d)     a person has been convicted of a serious offence to which the restraining order relates; and

(e)     the court is satisfied that the applicant’s interest in the property is neither proceeds of unlawful activity nor an instrument of unlawful activity; and

(f)     the court is satisfied that the applicant’s interest in the property was lawfully acquired.

… .”

49 Section 94A is in similar terms but relates to a “proportion of property”. It provides:

“(1)The court that made a restraining order referred to in paragraph 92(1)(b) must make an order that complies with subsection (2) if:

(a)     a person (the applicant) has applied for an order under the section; and

(b)     the court is satisfied that the applicant has an interest in property covered, or that was at any time covered, by the restraining order; and

(c)     a person has been convicted of a serious offence to which the restraining order relates; and

(d)     the court is satisfied that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence; and

(e)     the court is satisfied that the applicant’s interest is not an instrument of any offence.

(2)An order under this section must:

(a)     specify the proportion found by the court under paragraph (1)(d); and

(b)     direct the Commonwealth, once the property has vested absolutely in it, to:

(i)if the property has not been disposed of – dispose of the property; and

(ii)pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the sum of any payments of the kind referred to in paragraph 100(1)(b) in connection with the forfeiture.

… .”

50       In the definition section of the Act:

“329    Meaning of proceeds and instrument

(1)     property is proceeds of an offence if:

(a)it is wholly derived or realised, either directly or indirectly, from the commission of the offence; or

(b)is partly derived or realised, whether directly or indirectly, from the commission of the offence

whether the property is situated within or outside Australia.

… .”

51       Further:

“330When property becomes, remains and ceases to be proceeds or an instrument

(1)     property becomes proceeds of an offence if it is:

(a)wholly or partly derived or realised from a disposal or other dealing with proceeds of the offence; or

(b)    wholly or partly acquired using proceeds of the offence;

including because of a previous application of this section.

… .”

52       “Interest” in relation to property or a thing means:

“(a)     a legal or equitable estate or interest in the property or thing; or

(b)a right, power or privilege in connection with the property or thing;

whether present or future and whether vested or contingent.”

53       “Unlawful activity” means an act or omission that constitutes:

“(a)     an offence against a law of the Commonwealth; or

(b)     an offence against a law of a State or Territory; or

(c)     an offence against a law of a foreign country.”

54       The parties have accepted the real issue in this application is whether the applicant’s interest in the property is not the proceeds of unlawful activity and further, that the applicant’s interest was lawfully acquired.  The onus is upon the applicant, on the balance of probabilities, to satisfy the Court of these dual requirements.

Review of the authorities

55       In Director of Public Prosecutions (Cth) v Jeffrey,[12] Hunt CJ, in considering the Proceeds of Crime Act 1987 (Cth),[13] said:

[12](1992) 58 A Crim R at 310

[13]That Act, in relation to exclusion of property from forfeiture, used slightly different language to the current Act

“Similarly, the legal onus remains at all times upon an applicant for relief pursuant to … [the] Act. If his sworn denial in the terms of para (i) is accepted as honest and accurate, that onus has been discharged. As a matter of practical reality, what such an applicant must do in most cases in order to establish the negative facts stated in para (i) is not only to deny on oath in general terms that the property was so used in or derived from any such unlawful activities but also to establish what activities it was in fact used in and derived from … To a large extent, the derivation of the property would ordinarily be proved by the same facts as an applicant must establish in relation to para (ii).

So far as the first part of para (i) is concerned, however, in my view it is not necessary for an applicant - in addition to his sworn denial in general terms that the property had been so used in any such unlawful activities to deal specifically with every kind of unlawful activity which could be imagined in relation to the use of such property.  His is like the onus which the Crown bears in a criminal trial (although the extent of the burden is obviously not the same) to meet any ‘defence’ of accident, provocation or self-defence, etc; the Crown does not have to meet every such ‘defence’ which could possibly arise in relation to the offence charged.  There is an evidentiary onus or obligation upon the accused to point to or to introduce evidence from which it could be inferred that there is at least a reasonable possibility that, for example, his act was accidental, or that it was provoked or done in self-defence … .

In an application pursuant to s48(4), therefore, the applicant - in addition to his sworn denial in general terms that the property had been used in any unlawful activities in the manner described in para (i) - need deal specifically only with inferences available from the evidence that his property had been used in particular unlawful activities and which tend to contradict his sworn denial.  …

The Director, moreover, has the obligation to put an applicant for relief pursuant to s48(4) on notice (usually by cross-examination) of his intention to rely upon such inferences from the evidence which contradict his denial on oath that the property had been used in any unlawful activities in the manner described in para (i) …

It must, of course, be kept firmly in mind that the legal onus in relation to s48(4) remains at all times upon the applicant, and that what I have said refers only to a subsidiary issue as what is involved in the discharge of that onus from an evidentiary point of view.  As a matter of practical reality, the applicant will not discharge that onus unless he denies on oath in at least general terms the matters stated in para (i).  … .”[14]

[14]Jeffrey at 313-4

56       In Markovskiv Director of Public Prosecutions,[15] the Court was concerned with an application under the provisions of the Confiscation Act 1997. In that process, the court considered the meaning of the term “lawfully acquired” in the context of that Act. Redlich JA said:

“… It lends further support to the conclusion that if the property is acquired by the use of funds that are the proceeds of criminal activity, the transaction by which the property was acquired will not be lawful. It would be inconsistent with those provisions were the term ‘lawfully acquired’ to be construed as excluding from consideration the source of the funds and their effect upon the lawfulness of the transaction.

Giving the words ‘lawfully acquired’ their ordinary meaning, in the absence of evidence sufficient to satisfy the judge that the funds used to acquire the property did not come from the proceeds of crime, the property will not have been shown to be ‘lawfully acquired’.”[16]

[15][2014] VSCA 35

[16]Markovski at [8]-[9]

57       Further, Whelan JA said:

“It seems to me that whether one takes a narrow or a broad view of the term ‘lawfully acquired’, the ordinary meaning of that term may properly involve consideration of the source of the funds used in the acquisition. The appellant could cite no decided case or other source which adopts a construction whereby consideration of the source of the funds used is precluded.”[17]

[17]Markovski at [76]

58       Further, Santamaria JA, in considering the Confiscation Act, said:

“The (unstated) presumption in the Act is that such a person has not come by his or her interest in property lawfully, and, for that reason, the property should be confiscated. The draconian nature of the Act is mitigated either (a) by those provisions which, by their own force, limit the duration of a restraining order or cause it to cease to be in force or (b) by the jurisdiction to make exclusion orders. The Act provides that the presumption of unlawful acquisition may be overcome by proof of lawful acquisition.”[18]

[18]Markovski at [113]

The Mount Pritchard property

59       There are three components to consider in assessing whether the Mount Pritchard property ought to be excluded from forfeiture.  The first is the sum of $99,200 received by Ms Tran on 24 May 2010 from Vietnam, and the extent to which it was used towards the payment of the deposit, the balance of the purchase price and for various related purchase expenses.  The second is the loan of $350,000 borrowed from Bank-West to assist in the purchase.  The third are the repayments made under the loan from July 2010 through to the present time.

60       I am satisfied that on 24 May 2010, an amount of $99,200 was transferred into the account of Ms Tran via the Hai Ha Money Transfer Company in Ho Chi Minh City, Vietnam.  The receipt of those funds is clear from Ms Tran’s bank statements.[19]  The transfer is acknowledged in a money transfer tax invoice.[20]

[19]Exhibit LG-02 to the affidavit of Ljubo Gec sworn 30 October 2014

[20]Exhibit PTLT2 to the affidavit of Ms Tran affirmed 13 March 2014

61       According to the affidavit and evidence of Ms Tran’s sister, Ms Thu Tran, that money was part of an inheritance pool which Ms Tran and her two sisters and two brothers inherited from their parents.  There is no inference raised from the evidence to suggest that the transfer of these funds was anything other than a transfer designed to assist Ms Tran to purchase the Mount Pritchard property and from the inheritance as alleged.  There is no inference to suggest that the funds themselves were the proceeds of any unlawful activity.  It was not put to Ms Thu Tran in cross-examination that the funds and the purpose for the provision to Ms Tran was anything other than legitimate.

62       The total purchase price of the property was $456,000.  Of this, Bank-West provided a net amount of approximately $349,000.[21]  This leaves a balance of approximately $107,000.  There would be some additional fees, stamp duty and the like.  While no precise arithmetic breakdown of the monies extracted from Ms Tran’s bank account was undertaken, I am satisfied that the whole of the $99,200 was used in the payments of the deposit or the balance of purchase money.

[21]See Exhibit LG-02 to the affidavit of Ljubo Gec sworn 16 September 2014

63       As to the balance provided by Bank-West, as earlier stated, the representations made by Ms Tran, or on her behalf with her knowledge, in the loan application, as to various aspects of her employment, and the purpose for which the property was to be used, were false.  The prosecution submits that conduct constitutes an offence in itself.[22] While the applicant has a legal interest in the property as registered proprietor, it is subject to the registered mortgage of Bank-West to secure the loan.  As such, Bank-West has an interest in the land as mortgagee.[23]  The mortgage contains covenants, including for the mortgagor to repay principal and interest and maintain the property.  In the event of default, the mortgagee has a power of sale.

[22]Obtaining financial advantage by deception (Section 192E of the Crimes Act 1900 (NSW)) or Dealing in property reasonably suspected as being the proceeds of crime (Section 400.4(2) of the Criminal Code (Commonwealth))

[23]See s74(2) of the Transfer of Land Act 1958

64 Thus, to the extent Ms Tran owes the amount advanced to assist in the purchase of the property to Bank-West, her legal interest is subject to the interest of Bank-West as mortgagee. Section 94A contemplates the making of an exclusion order when the court is satisfied that “a proportion of the value of the applicant’s interest was not derived from the commission of any offence”. That proportion is the proportion of the amount of the mortgage advanced as against the whole of the value of the property. The proportion which is represented by the balance of the purchase money (over and above the mortgage advance) to the whole of the value of the property was not, as I have found, borne of any offence. One must then deal with that part of Ms Tran’s interest in the property represented by the mortgage loan. It would be an anomaly for a court to impugn the legal interest of Bank-West because of Ms Tran’s false application.

65 Section 94A is the relevant section, rather than s94, as s94A contemplates a proportion of an interest, and, as Mr O’Neill for Ms Tran points out, s94A is worded differently from s94, and does not require that the proportion of the interest be derived from unlawful activity, rather that it be derived from “an offence”. While there was a blatant misrepresentation in the loan application by Ms Tran, was she thus guilty of an “offence”? That is not a straightforward question to answer, in the absence of a finding by a jury to that effect. She would require the necessary mens rea and be required to meet all the other elements in order to be found guilty.  In evidence, she said she could neither speak nor read English and the application had to be filled in by a mortgage broker.  In the circumstances, I find it difficult to be convinced the completion of the loan application is an offence.

66       In relation to the loan repayments, Mr O’Neill submitted that the mortgage repayments are a separate expense made in compliance with the provisions of the mortgage.  He submitted that Ms Tran’s interest in the property was not derived from mortgage repayments, but rather from the funds contributed at the time of purchase.  In my view, that submission is correct.  The repayment of monthly mortgage amounts is a requirement of the mortgage contract and, of themselves, do not purport to create a particular legal interest in the property.

67       Further, as Mr O’Neill submits, the mortgage payments since 2010 have been made by Mr Vincent Nguyen, Ms Tran’s son, and possibly Mr Van Nguyen and Mr Hoang.  Before her incarceration, the balance of the money was made up by payments from Ms Tran.  It was not suggested to Ms Tran that the payments made by her son were false or from proceeds of some criminal activity, nor was that put to the other witnesses in cross-examination. 

68       While there is some uncertainty on the evidence as to precisely how all the payments were made, and precisely from what source Ms Tran obtained the balance due each month, I am satisfied that payments under the mortgage were made as she alleges, and therefore cannot be impugned as illegitimate.

The Jewellery

69       Ms Tran gave evidence as to how she acquired the various items of jewellery the subject of the forfeiture orders. 

70       Mr O’Neill submits that the valuations of the jewellery provided by Mr Walsh are of little assistance in determining whether her interest in the property was acquired through unlawful activity, and was lawfully acquired.  Given the fact that the valuations were arrived at years after the items were purchased or acquired, and the acceptance by Mr Walsh that his assessment of replacement costs does not necessarily reflect the purchase price of the items, his evidence is of little assistance. 

71       He further submitted that Ms Tran’s evidence in relation to the acquisition of the jewellery was inherently credible and it would not be uncommon for her to bring a significant quantity of jewellery or cash through a refugee camp and into Australia.  In addition, he said that the evidence of the various gentlemen who gave evidence of gifts to her of the more valuable items, that evidence was credible.  He said that there was no evidence upon which the respondent could point to, or any inference arising from the evidence, that the jewellery was the proceeds of unlawful activity.

72       He submitted that to the extent that some of the more valuable items were provided by the deponents of the affidavits, it was reasonable to accept that they purchased expensive items in order to gain her favour, as all were, at one time or another, suitors.  To the extent that they either paid for items of jewellery or provided cash to Ms Tran for her to purchase them, there was no evidence, nor any inference from the evidence, to suggest that the funds used were obtained from any unlawful activity.

73 Section 94 provides a two-fold test. It requires the applicant to prove that the property is not the proceeds of unlawful activity and, in addition, that the property was lawfully acquired.

74       As stated above, I found the evidence of Ms Tran, Mr Robert Hoang, Mr Van Hai Nguyen and Mr Vincent Nguyen unsatisfactory.  Their credibility is significantly impeached.  I place little credence upon the evidence they gave as to the acquisition of the jewellery.

75       The starting point is whether there has been an honest and reasonable denial the items were the proceeds of unlawful activity and whether I am satisfied, the onus being upon the applicant, that the jewellery was lawfully acquired.

76       I am not satisfied that onus has been discharged.  I am not satisfied any of the items of jewellery have been lawfully acquired.  I draw that conclusion for the reasons set forth in the attached document[24] which analyses the items of jewellery and the evidence given as to their acquisition.  In respect to a number of the items, Ms Tran exhibited photographs said to have been taken of her wearing a particular item of jewellery.  The photographs provide little assistance.  There was no issue Ms Tran had the items.  The question is where the funds came from to purchase them.  Likewise, the evidence of her sister, Ms Thu Tran, is of little assistance.  In her affidavit, she said a large number of items of jewellery were passed to Ms Tran as the youngest daughter.  These included bangles, rings, pendants and earrings.  However, none of those items were specifically identified with those the subject of the Forfeiture Order.  Further, both Ms Tran and Mr Van Nguyen referred to “informal property settlements” with their respective former spouses which provided funds to purchase various items of jewellery.  There was no documentation to support any such settlements, and the explanation is unacceptable.  Many of the items were of considerable value.  While many persons in the community do not insure even valuable items of jewellery, the applicant’s case is not assisted by the provision of any insurance policies with the jewellery itemised.

[24]Appendix “B” to these Reasons for Judgment

Conclusions

77       For the reasons stated, the Mount Pritchard property should be excluded from forfeiture.  Further, all of the items of jewellery should be forfeited. 

78       I shall hear from the parties further, as to any consequent orders.

- - -

Appendix “A”

Item	Assessed Item Value	Claimed Item Purchase Price	Excluded by consent	Aff. of Van Hai Nguyen	Comments	Aff. of Robert Hoang	Comments	Aff. of Vincent Nguyen	Comments	Aff. of Phuong Thi Lan Tran	Comments
Y	Y	Y	Y
EMU 177246012:	Y	Y
Item 1 — 18ct. white gold hand assembled Diamond solitaire style ring	$63,020	$22,000	Y	- Purchased August 2005. - Purchased at My Tin Jewellery store, Cabramatta. - Cost approx. $22,000. - Money saved from work.	Y	- Confirms RH account.
Item 2 —9ct. white gold hand assembled solitaire ring	$2,510	$100	Y	- Purchased in Vietnam in 2006 or 2007. - Cost approx. $100.
Item 3 — 18ct white gold hand crafted ring consisting of five brilliant cut diamonds	$7,000	$4,000	Y	- Gift from boyfriend Son Hai Luong (no evidence from Luong). - Purchased 2004. - Purchased at Kim Thau Jewellery store, Cabramatta. - Cost approx. $4,000.
Item 4 — 18ct. white gold hand assembled Diamond cluster ring consisting of seven brilliant cut Diamonds	$5,460	$1,300	Y	- Gift from husband Khanh Minh Duong (no evidence from Duong). - Purchased 25 July 2009 - Purchased at Kim Thanh Jewellery store, Cabramatta. - Cost approx. $1,300.
Item 5 — 18ct. white gold cast ring consisting of nine brilliant cut Diamonds	$2,810	$900	Y	- Purchased herself in 2008. - Purchased at Kim Thanh Jewellery store, Cabramatta. - Cost approx. $900, used vouchers totalling $600 plus cash.
Item 6 — 18ct. white gold Diamond solitaire style ring	$53,545	$13,000	Y	- Gift from boyfriend Son Hai Luong (no evidence from Luong). - Originally purchased 2003, upgraded 2004. - Upgraded at Long Fong Jewellery and Watches, Cabramatta. - Upgrade cost approx. $13,000.
Item 7 — 18ct. white gold cast cluster ring	$10,440	$4,000	Y	- Purchased herself in 2008. - Purchased at Kim Thau Jewellery store, Cabramatta. - Cost approx. $4,000.
EMU 177246013:	Y
Item 1— Gold plated base metal fancy design ring	$0	$50	Y	Y	- Purchased in Vietnam in 2006 or 2007. - Cost approx. $50.
Item 2 — 14ct. yellow gold hand assembled ring	$265	$30	Y	Y	- Purchased in Vietnam in 2006 or 2007. - Cost approx. $30.
EMU 177246014:	Y	Y	Y
Item 1 — 18ct. white gold hand assembled hinged bangle consisting of nine brilliant cut Diamonds	$16,130	$6,000	Y	- Purchased herself in 2004. - Purchased at Star City Casino. - Cost approx. $6,000.
Item 2 — 18ct. white gold hand assembled hinged bangle consisting of 14 brilliant cut Diamonds	$17,150	$7,000	Y	Purchased circa 1996-97. - Purchased at unnamed Cabramatta jewellery store. - Cannot recall cost.	Y	- Claims she received sometime prior to 2001. - Purchased at Tan Kim Kim Jewellery, Cabramatta. - Recalled cost as $7,000, although unclear whether this is purchase price or upgrade.
Item 3 — 18ct. white gold hand assembled hinged bangle each half consisting of 21 brilliant cut Diamonds	$27,160	$0	Y	Y	- PTLT received from her mother on her death in 2006.
Item 4-18ct. white gold hand assembled bracelet consisting of nine brilliant cut Diamonds	$54,515	$28,000	Y	- Purchased 14 February 2011. - Purchased at unnamed Cabramatta jewellery store. - Cost approx. $28,000. - Purchased with part proceeds of sale of business in 2008.	Y	- Confirms VN account.
EMU 177246015:	Y	Y
Item 1 — 18ct. white gold hand assembled duster Pendant	$20,060	$5,000	Y	Purchased circa 2002-03. - Purchased at unnamed Cabramatta jewellery store. - Cannot recall cost.	Y	- Claims she received sometime prior to 2001. - Purchased at Tan Kim Kim Jewellery, Cabramatta. - Recalled cost as $5,000.
EMU 177246016:	Y	Y
Item 1— Pair of sterling silver hand assembled ear studs	$240	$70	Y	Y	- Purchased in Vietnam in 2007. - Cost approx. $60-70.
Item 2 — Pair of 18ct. white gold hand assembled cluster ear studs	$6,400	$1,700	Y	- Gift from husband Khanh Minh Duong (no evidence from Duong). - Purchased two weeks prior to 25 July 2009. - Purchased at Kim Thanh Jewellery store, Cabramatta. - Cost approx. $1,700.
Item 3 — Pair of 18ct. white gold hand crafted cluster ear studs	$25,840	$11,500	Y	- Purchased late 2008, early 2009. - Purchased at unnamed Cabramatta jewellery store. - Cost approx. $11,500. - Purchased with part proceeds of sale of business in 2008.	Y	- Confirms VN account.
Item 4 — Pair of 14ct. white gold ear studs	$495	$50	Y	Y	- Purchased in Vietnam in 2006 or 2007. - Cost approx. $50.
EMU 177246017:	Y
Item 1— Pair of 9ct. white gold hand assembled hoop earrings	$735	$10	Y	Y	- Purchased in Vietnam in 2006 or 2007. - Cost approx. $10.
EMU 177246018:	Y
Item 1 — 9ct. white gold serpentine link chain	$415	$200	Y	Y	- Purchased in Vietnam in 2006 or 2007. - Cost approx. $200.
EMU 177246019:	Y
Item 1 —Jadeite Pendant	$2,805	$0	Y	Y	- PTLT received from her mother on her death in 2006.
EMU 177246020:	Y
Item 1— Four imitation Diamonds	$15	$0	Y	Y	- Purchased in Vietnam in 2006 or 2007. - Cannot recall cost.
EMU 177246021:	Y
Item 1— Pair Jadeite disks	$255	$0	Y	Y	- PTLT received from her mother on her death.
EMU 177246022:	Y
Item 1— Pair of 14ct. yellow gold ear studs	$530	$0	Y	Y	- PTLT received from her mother on her death.
EMU 177246034:	Y	Y
Item 1 — 18ct. white gold cast Diamond solitaire style ring	$29,145	$5,000	Y	- Purchased circa 2003-04. - Purchased at unnamed Cabramatta jewellery store. - Cannot recall cost.	Y	- PTLT former husband VHN paid for upgrade of diamond in 2000. - Upgrade from Kim Thanh Jewellers, Cabramatta.
Item 2 — 9 ct. white gold cast ring	$2,155	$200	Y	- Purchased in Vietnam in 2006 or 2007. - Cost approx. $200.
Item 3 — 18ct. white gold hand assembled Diamond solitaire style ring	$23,280	$4,000	Y	- Purchased herself in 2004. - Purchased at Long Fong, Cabramatta. - Cost approx. $4,000.
EMU 177246035:	Y
Item 1 — Gold plated base metal ring	$0	$80	Y	Y	- Purchased herself in 2011 - Purchased at Liverpool, NSW. - Cost approx. $80.
EMU 177246036:	Y
Item 1 —14ct. white gold cast ring	$450	$120	Y	Y	- Purchased in Vietnam in 2006 or 2007. - Cost approx. $120.
EMU 177246037:	Y
Item 1— Rhodium plated base metal expanding bracelet	$0	$0	Y	Y	- Purchased in Vietnam in 2006 or 2007. - Cannot recall cost.
EMU 177246038:	Y
Item 1— 9ct. white gold cast pendant	$570	$120	Y	Y	- Purchased in Vietnam in 2006 or 2007. - Cost approx. $120.
Item 2 — 9ct. white gold hand assembled pendant	$2,995	$200	Y	- Gift from husband Khanh Minh Duong (no evidence from Duong). - Purchased in Vietnam in 2007. - Cost approx. $200.

Appendix “B”

ITEM	EVIDENCE AS TO ACQUISITION	MY COMMENTS
EMU177246012 Item 1 – 18 carat white gold ring	Purchased in August 2005 by Robert Hoang as a birthday gift for approximately $22,000.  According to the affidavit of Mr Hoang, the item was purchased from the “My Tin” jewellery shop in Cabramatta.  He said the money was saved from work as a driver.  The money was earned over one to two years.	Such a ring is an extremely expensive gift for someone on a modest wage, even given Mr Hoang said that he was in love with the applicant.  Moreover, there is no receipt or other documentation to identify the ring.  The explanation for its purchase is implausible.  I am not satisfied that it was lawfully acquired.
EMU177246012 Item 2 – 9 carat white gold ring	Purchased in Vietnam in 2006 or 2007 for approximately $100.	Even accepting the vagaries of the valuations undertaken by Mr Walsh, the replacement value of the ring in 2011 was $2,500.  It is difficult to accept that the ring was purchased for such a modest sum four or five years earlier.  I am not satisfied that the ring was lawfully acquired.
EMU177246012 Item 3 – 18 carat white gold ring	This item was said to be a gift from then boyfriend, Son Hai Luong, in or about 2004.  The item was purchased from “Kim Thau Jewellery” in Cabramatta for approximately $4,000.  Miss Tran has had no contact Mr Luong over recent years and did not know where to locate him.	There was no evidence from Mr Luong, nor any evidence from Miss Tran as to her attempts to locate him.  Further, no evidence about any attempt to obtain a receipt for the ring, or other documentation.  I am not satisfied that the ring was lawfully acquired.
EMU177246012 Item 4 – 18 carat white gold cluster ring	The ring was said to be a gift on Miss Tran’s wedding from her husband, Minh Khanh Duong, and presented on 25 July 2009.  The ring was purchased from “Kim Thanh Jewellery” in Cabramatta for approximately $1,300.	There was no evidence from Mr Duong, nor any explanation as to why he was not called.  No documentary proof was provided.  I am not satisfied that the ring was lawfully acquired.
EMU177246012 Item 5 – 18 carat white gold ring	Miss Tran said that this ring was purchased for $900 by her in 2008 from “Kim Thanh Jewellery” in Cabramatta.  She said that she used a number of vouchers which she had been given through previous purchases.	Again, there is no documentary evidence as to purchase, nor any explanation of any attempt to obtain such evidence.  I am not satisfied that the ring was lawfully acquired.
EMU177246012 Item 6 – white gold diamond solitaire ring	This ring was said to be a gift from Miss Tran’s then boyfriend, Son Hai Luong, in about 2003.  In 2004, the ring was upgraded at “Long Fong Jewellery” in Cabramatta and paid for by Son Hai Luong.  Miss Tran believes that the cost was $13,000.	No evidence was given by Son Hai Luong, nor any explanation as to steps taken to locate him.  Again, there is no documentation in relation to this ring.  I am not satisfied that it was lawfully acquired.
EMU177246012 Item 7 – 18 carat white gold cluster ring	This ring was said to be purchased by Miss Tran in 2008 from “Kim Thau” in Cabramatta for approximately $4,000.	In evidence, Miss Tran gave a different explanation.  She said that she had a ring, the style of which she did not like.  So she traded that ring, plus provided some cash, to obtain this item.  The difference between the trading price of the first ring and this item was made up from cash which Miss Tran said she kept at home.  Again, there is no documentation to support this claim, and the explanation provided in evidence is significantly different from that provided in her affidavit.  I am not satisfied that the item was lawfully obtained.
EMU177246014 Item 1 – 18 carat white gold bangle	Miss Tran said that she purchased this in 2004 at the Star City Casino in Sydney for $6,000.  In evidence, she said that she went to the Casino and a woman pawned the bangle to her for $3,000.  She said that she provided $3,000 cash, which she had won at the Casino.	Again, her explanation in evidence differs from what was said in her affidavit.  I am not satisfied that the bangle was lawfully acquired.
EMU177246014 Item 2 – 18 carat white gold bangle.	Miss Tran said that she received this bangle from her then husband, Van Hai Nguyen, in 2001 as a gift.  It was purchased for approximately $7,000. It was upgraded at the “Tan Kim Kim” jewellery store in Cabramatta.  The couple divorced in 2003.  In evidence, Mr Nguyen said that he purchased the item in 1996 to 1997 at a jewellery shop in Cabramatta, the name of which he could not recall.  He said he could not remember how much he paid for the item.  He said that the item was purchased with money he brought into Australia from a refugee camp.  He said his wife loved diamonds and he told her to buy what she liked.	Again, the purchase of the item is not supported by any documentation.  There is no explanation as to how either Miss Tran or Mr Nguyen had sufficient funds to purchase such an item.  There is nothing to confirm either Ms Tran or Mr Nguyen came to Australia with any gold or cash.  I am not satisfied that the item was lawfully acquired.
EMU177246014 Item 4 – 18 carat white gold bracelet	Miss Tran said that she received this bracelet as a gift from Mr Vincent Nguyen on 14 February 2011.  It was purchased for $28,000 from “Kim Tanh Jewellery” in Cabramatta and paid for by Mr Nguyen.  Attached to Miss Tran’s affidavit sworn 16 October 2014 is a document said to be a quotation from Kim Tanh Jewellery dated 18 August 2010 for $27,990.  According to the translation of the document, there is reference for a price of $27,990 for nine diamonds.	The quotation does not identify the jewellery store from which the item was alleged to have been purchased.  The quote makes no mention of the transaction to purchase the item.  There is no supporting documentation to confirm the purchase.  It is unbelievable that an item of this size would not have some associated documentation.  According to Mr Nguyen, he gave approximately $28,000 to Miss Tran to purchase the item.  He said that this was from the sale of a business owned by himself and his former wife.  He said that the business was purchased in 2005 and sold in 2008 for $83,000, from which he received an amount of $40,000.  He said he loaned this money to various people and was able to obtain interest on the black market.  The explanation is unbelievable and there is no supporting documentation.  I am not satisfied that the item was lawfully acquired.
EMU177246015 Item 1 – 18 carat white gold pendant	Miss Tran said that she received this as a gift from her then husband, Van Hai Nguyen, before 2001.  It was purchased for $5,000 from “Tan Kim Kim Jewellery” in Cabramatta.  According to the affidavit of Mr Van Hai Nguyen, the item was purchased from money he gave Miss Tran around 2002-2003.  He could not recall the jewellery store from which it was purchased but said that he drove Ms Tran there.  He could not remember how much the pendant cost.  He said that he saved $4,000-$5,000 from working.  At this time, he was working part time as a presser in a clothing factory, earning $200 per week.  He gave Miss Tran $3,000-$4,000.	The explanation for the acquisition of this item is unbelievable.  Again, there is no documentation to support the claim.  It is difficult to understand how such money could be accumulated when neither Miss Tran nor her husband were in full-time employment.  I am not satisfied that this item was lawfully acquired.
EMU177246016 Item 2 – pair 18 carat white gold ear studs	This item was said to be a gift from Miss Tran’s husband, Minh Khanh Duong, as a wedding-day gift on 25 July 2009.  Miss Tran said that she purchased the studs from “Kim Thanh Jewellery” in Cabramatta for approximately $1,700, which was provided by Mr Duong.	Mr Duong was not called to give evidence and there is no supporting documentation.  I am not satisfied that this item was lawfully acquired.
EMU177246016 Item 3 – pair 18 carat white gold ear studs	Miss Tran said that these ear studs were a gift from Mr Vincent Nguyen around 2009 and were purchased for $11,500 from “Kim Thau” jeweller in Cabramatta.  Mr Vincent Nguyen, in his affidavit, said that he purchased this item, in part, from the proceeds of the money given to him by his former wife after the business was sold.  In her affidavit of 16 October 2014, Ms Tran provided a document said to be the quotation for the ear studs in the sum of $10,370.	The “quotation” refers to diamonds and a purchase price of $10,370 referred to.  There is no reference to ear studs or anything else to associate the quotation with the item referred to, or the jewellery shop from which it was purchased.  Again, I am not satisfied that the item was lawfully acquired.
EMU177246034 Item 1 – 18 carat white gold cast diamond ring.	Miss Tran said that this item was purchased by her then husband, Van Hai Nguyen, in about 2005 for approximately $5,000.  She said that the diamond ring had been upgraded.  According to Mr Van Hai Nguyen, the ring was purchased from money that he gave to Miss Tran in 2003 or 2004 as part of an informal property settlement.  He could not recall the jewellery store from which it was purchased.  According to Miss Tran’s affidavit of 16 October 2014, it is shown in a photograph (Exhibit PTLT4).	There is nothing to associate the ring shown in the photograph with the item.  Again, there is no documentary explanation.  In cross-examination, Mr Nguyen said that when he and his wife had divorced, she had wanted to refinance the house so that she could give him some money.  He said he did not want to take any money from her but, instead, took her to Cabramatta and used that money to purchase the ring.  This version not only contradicts Ms Tran’s version, but is incredulous.  I am not satisfied that the item was lawfully acquired.
EMU177246034 Item 2 – 9 carat white gold cast ring	Miss Tran said that she purchased this ring in 2006 or 2007 when she was in Vietnam.  She thought it cost about $200.	There is no explanation or supporting documentation to support the purchase.  I am not satisfied that it was lawfully acquired.
EMU177246034 Item 3 – 18 carat white gold solitaire diamond ring	Miss Tran said that she purchased this ring herself in 2004 from “Long Fong” jewellery store in Cabramatta.  In cross-examination, she said that the $4,000 was a gift from her fiancé, Binh Luu, a businessman from Vietnam who used to come to Australia.  He provided a gold necklace which she sold and used the money to purchase the ring.	Again, the explanation is without any credibility and completely unsupported.  There was no evidence from Binh Luu nor any explanation as to the steps taken to locate him.  I am not satisfied the item was lawfully acquired.
EMU177246038 Item 2 – 9 carat white gold pendant	Miss Tran said that this item was a gift purchased by her husband, Minh Khanh Duong, for $200 in Vietnam.	There was no evidence given by Mr Duong and nothing to support the purchase of the item.  I am not satisfied that the item was lawfully acquired.