Director of Public Prosecutions (Cth) v Ngo
[2007] QDC 319
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- Unreported Judgment
- Director of Public Prosecutions (Cth) v Ngo[2007] QDC 319
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Director of Public Prosecutions (Cth) v Ngo[2007] QDC 319
Director of Public Prosecutions (Cth) v Ngo[2007] QDC 319
DISTRICT COURT OF QUEENSLAND
CITATION: | Commonwealth Director of Public Prosecutions v Ngo [2007] QDC 319 |
PARTIES: | COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Applicant AND HI NGO Respondent HI NGO First Applicant AND CHAU TU VUONG Second Applicant AND BENJAMIN NGO Third Applicant AND COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Respondent |
FILE NO/S: | BD4095/04 and BD1976/06 |
DIVISION: |
|
PROCEEDING: | Applications |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 23 November 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 May 2007 |
JUDGE: | McGill DCJ |
ORDER: | In BD4095/04, order in terms of the draft. In BD1976/06, application dismissed. |
CATCHWORDS: | CRIMINAL LAW – Confiscation of profits – whether reasonable grounds to suspect – whether property in effective control of suspect. CRIMINAL LAW – Confiscation of profits – exclusion from order – no power to extend time – failure to show property not the proceeds of unlawful activity. Proceeds of Crime Act 2002 (Cth) ss 18, 29, 30, 377(4). Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 – cited. Director of Public Prosecution (Cth) v Hart (No 2) [2005] 2 Qd R 246 – applied. Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118 – distinguished. George v Rockett (1990) 170 CLR 104 – cited. Hussein v Chong Fook Cam [1970] AC 942 – cited. Jeffrey v DPP (1995) 79 A Crim R 514 – distinguished. Manley v Tucs (1985) 40 SASR 1 – cited. Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 – applied. R v Raso (1993) 68 A Crim R 495 – cited. Westpac Banking Corporation v Commissioner of State Revenue [2005] QCA 327 – followed. |
COUNSEL: | M. G. Freer for the Commonwealth DPP P. D. Smith for other parties |
SOLICITORS: | Commonwealth Director of Public Prosecutions TDT Lawyers for other parties |
- [1]In this matter there were two applications before me. In BD4095/04 there was an application for a restraining order pursuant to s 18(1) of the Proceeds of Crime Act 2002 (Cth) (“the Act”) to restrain the interests of Chau Tu Vuong, the wife of the respondent Hi Ngo,[1] in certain identified property. In BD1976/06 the respondent’s wife sought to have property excluded from the restraining order proposed to be been under s 18, pursuant to s 30 of the Act. From the point of view of the parties other than the Commonwealth Director of Public Prosecutions (“the DPP”), the applications are in the alternative, in the sense that the exclusion application was said to be advanced as an alternative to the dismissal of the application by the DPP. When the matter came on before me, applications for forfeiture and pecuniary penalty orders against the respondent were by consent stayed until certain criminal proceedings against the respondent were concluded or until further order.
History of the proceedings
- [2]This matter has some history. By an originating application filed 15 November 2004, the DPP sought an order under s 18 of the Act restraining certain specified property of the respondent. Such an order was made by Trafford‑Walker DCJ on 15 November 2004. Then on 20 January 2005 a further application under s 18 of the Act was made seeking to restrain all of the respondent’s property excluding some particular items. An order to that effect was made by Wylie DCJ on 21 January 2005. Then on 13 April 2005 an ex parte application again sought an order under s 18 restraining all property of the respondent apart from certain excluded items. In addition the application sought, pursuant to s 47 of the Act, forfeiture to the Commonwealth of all property of the respondent, other than certain specified items.
- [3]On the same day, a restraining order was made ex parte under s 18 of the Act by Wilson DCJ. Included in the property the subject of the order was:
- “(f)Hi Ngo’s interest in the whole of money standing to credit of the Commonwealth Bank of Australia account number 4000 11089082 held in the names of Hi Ngo and Chau Tu Vuong as at 21 January 2005;
- (g)Hi Ngo’s interest in the whole of the monies standing to the credit of Commonwealth Securities account number 400042 held in the names of Hi Ngo and Chau Tu Vuong as at 21 January 2005;
- (j)Hi Ngo’s interest in shares and other securities; … .”
- [4]There have subsequently been a number of other applications. However, on 16 January 2007 the DPP filed a further application seeking to restrain pursuant to s 18 of the Act the interest of the respondent’s wife in the two identified items of jointly owned property referred to in (f) and (g). These were items of jointly owned property the respondent’s interest of which had already been restrained. The applications also sought forfeiture orders in relation to the respondent’s wife’s interest in this property. I was told that the purpose of seeking this restraining order was because there was some issue as to the extent of the respective equitable interests of the respondent and his wife in this property, and the DPP wish to ensure that whatever the position is in relation to their respective equities, the whole of the interest in the assets was effectively restrained.
Requirements of s 18
- [5]Whatever the motive may be for the application, it is clear from s 18 of the Act that the court has no discretion in the matter; if the requirements for a restraining order are satisfied, the court must make the order: s 18(1). Under s 21, there is a discretion to refuse to make an order if the Commonwealth refuses to give the undertaking referred to in that section; there was no issue about an undertaking in the present case. There was no dispute that this court has jurisdiction to make the order; that is to say, it has “proceeds jurisdiction” referred to in that subsection, and the DPP has applied for the order.
- [6]The remaining requirements of s 18 are that there are reasonable grounds to suspect that a person has committed a serious offence within the six years before the application was made or since the application, the affidavit requirements in subsection (3) have been met, and the court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds. The requirements in subsection (3) are that the application be supported by an affidavit of an authorised officer stating that the authorised officer suspects the suspect committed the offence within six years preceding the application or since the application was made, and if, as is the case here, the application is to restrain property of a person other than the suspect, that the property is subject to the effective control of the suspect or that the property is proceeds of the offence, and state the grounds on which the authorised officer holds those suspicions.
Reasonable grounds to suspect
- [7]The first set of offences relied on by the DPP relate to tobacco trading: conspiring with the directors of Queensland Duty Free dishonestly to cause a risk of loss of customs and excise duty to the Commonwealth, contrary to s 135.4(5) of the Code; aiding Queensland Duty Free and Peace Duty Free to commit offences, namely dishonestly causing a loss of customs and excise duty to the Commonwealth, contrary to s 135.1(3) of the Code; and dealing in tobacco which was the proceeds or an instrument of crime contrary to s 400(3) of the Code. Essentially it was alleged the respondent purchased tobacco from Queensland Duty Free and Peace Duty Free on which duty had not been paid[2] and subsequently resold it without having himself paid the duty, and without indicating to the purchaser from him that duty had not been paid, with the intention that ultimately the tobacco products would be sold without the duty being paid.
- [8]The respondent was examined pursuant to s 180 of the Act. From that examination[3] it appears that between mid 2003 and November 2004 he purchased something in the order of $2.7 million worth of tobacco products from those two stores. No documentation of those purchases was provided by those stores, nor did he request any, and payment for all the purchases was made in cash. He knew that duty was payable on the tobacco, and claimed to have believed that duty had been paid on the tobacco, although he had never directly asked either of the stores whether this was the case, or where the tobacco came from. Some of the tobacco supplied had labels marked “duty free” or “for duty free sales only”, and when this occurred he cut off the labels before reselling the tobacco. He gave those to whom he resold the tobacco an explanation as to where it came from which was false, and he refused to supply tax invoices to his customers. He kept no record of his purchases or sales. He collected the tobacco from the duty free store after hours from a basement car park when purchasing it from Queensland Duty Free,[4] and from the residence of the owners of the store when purchasing it from Peace Duty Free.
- [9]There is other evidence that no customs or excise duty was paid on any of this tobacco product by Queensland Duty Free, Peace Duty Free, the respondent or a Mr Edwards, the major customer of the respondent.[5] Mr Edwards did keep records, and on the basis of those records the duty payable in respect of the tobacco supplied by the respondent to Mr Edwards was $931,000 in customs duty[6] and $1.7 million in excise duty.[7]
- [10]Apart from the offences in relation to dealing with tobacco, the DPP also relies on the suspicion that the respondent has committed offences under s 134.2(1) of the Code in failing properly to disclose his income in his 2000, 2001, and 2002 tax returns, which were lodged in mid‑2006.[8] These disclosed income from interest and dividends, and some overseas income, but no income involving carrying on any business in Australia. The evidence of an investigating accountant,[9] who has analysed the financial affairs of the respondent, was that in those three years the respondent earned an estimated income of approximately $134,000, $341,000, and $211,000 respectively, compared with the amounts returned of $5,576, $22,683, and $26,425.[10] This was based largely on an analysis of cash deposits to the respondent’s bank accounts, matters of which he must have been aware. Had that additional income been disclosed, substantially more tax would have been payable by the respondent, and in these circumstances the inference is reasonably open, indeed obvious, that the failure to disclose the additional income was deliberate.
- [11]Although the respondent has not admitted purchasing tobacco prior to mid‑2003, there is some evidence available to the DPP, in the form of affidavits from two former employees of Queensland Duty Free, that the respondent was a substantial customer of tobacco from that store from prior to 2000.[11] If the respondent was dealing in tobacco in the financial years 2000, 2001, and 2002, the fact that he did not disclose any income from this source supports the inference that his dealings were dishonest, that is that he was to his knowledge dealing in tobacco on which duty has not been paid.
- [12]It was submitted on behalf of the respondent that there were not reasonable grounds to suspect that the respondent has committed a serious offence. As to the offences associated with dealing in tobacco, it was submitted that it could not be proved that the respondent knew that the shops from which he had purchased the tobacco had not paid duty on the cigarettes. It was said that the evidence indicated that he paid more than the duty free price of the cigarettes, and that the amount that he paid on a carton of cigarettes was more than the amount of the duty payable. This was disingenuous. The whole method of trading strongly suggests illegality. There was also evidence that an employee of one of the stores was told by the respondent in December 2004 to leave Australia and not come back.[12] That reinforces an inference of guilty knowledge. The various arguments advanced were the sort of things which would be said to a jury to try to persuade them to have a reasonable doubt as to the guilt of the respondent.
- [13]The test of “reasonable grounds to suspect” is not very demanding. Suspicion is different from proof, having been described as a state of conjecture or surmise where proof is lacking.[13] The question is whether facts are shown which are sufficient to induce suspicion in a reasonable person. Kitto J has described suspicion as amounting to “a slight opinion, but without sufficient evidence”, in a passage in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303. That case was concerned with whether there was reason to suspect that a person might not be able to pay his debts when they became due. This was said to be something which was more than a reason to look into or consider the possibility that that was the situation, but to give rise to an actual apprehension or fear that that was the situation. Suspicion can be said to lie between speculation and belief.[14] There can be reasons for investigating whether something is so without there necessarily being reasons to suspect it is so.[15] Suspicion can be based on matters which would not be admissible as evidence.[16]
- [14]In my opinion, the facts referred to, which are supported by the affidavit evidence, provide reasonable grounds to suspect that the respondent has committed offences involving trafficking in tobacco on which duty was not being paid, and that he deliberately submitted false income tax returns so as to evade income tax. The material in the affidavits gives rise in my mind to an actual apprehension or suspicion that that was the situation, and I consider that the material amounts to reasonable grounds for that suspicion.
- [15]I was told that committal proceedings against the respondent were unsuccessful in the magistrates court.[17] That is of no consequence for present purposes. The decision of the magistrate not to commit gave rise to no estoppel even for the purposes of criminal proceedings, and the test applied by a magistrate is different from the test that I have to apply under s 18. In my opinion that circumstance is irrelevant to what I have to decide.
Affidavit requirements
- [16]The second requirement is that the affidavit requirements in s 18(3) have been met. The DPP relied on the affidavit of customs officer Mr Potts,[18] who deposed to being an authorised officer for the purposes of the Act. His affidavit deposed to suspecting that the respondent has committed offences under s 135.4(5) of the Code, 135.1(3) of the Code, 400.3(3) of the Code, and 134.2(1) of the Code; these are the offences referred to earlier. The officer also deposed to a suspicion that the property in question is subject to the effective control of the respondent. The affidavit deposed to the former suspicions being held on the basis of the matters that were set out in the affidavits listed in paragraph 3 of his affidavit, and the latter suspicion being based on the belief that all or almost all the funds in the CBA account and the source of funding for the share portfolio were supplied by the respondent, because of the conclusions set out in the affidavit of Mr Dolan filed 11 January 2007. He also took into account what was said by the respondent’s wife during her examination under s 180, and the analysis of the financial position of the respondent exhibited to Mr Dolan’s affidavit filed 12 December 2006, which also suggested that the respondent’s wife took no part in any transactions involving either the accounts or the share trading in the share portfolio.
- [17]Although s 18(3) requires the affidavit to state the grounds on which the authorised officer holds the suspicions referred to, in my opinion that can be done by reference in the affidavit to the contents of other affidavits, or indeed other documents, provided they are properly identified in the affidavit and in that way incorporated by reference. In my opinion the procedure adopted in the present case is sufficient to satisfy the requirements of subsection (3).
Suspicion of officer on reasonable grounds
- [18]The third element is that the court is satisfied that the authorised officer who made the affidavit holds the suspicions on reasonable grounds. There was no challenge to the proposition that the suspicions were in fact held, and in any case I suspect that the real legislative intention was that the court should consider whether the material disclosed as relied on by the officer did amount to reasonable grounds for such suspicions. As to the suspicion about the commission of the offences, this deals with the same issues that I dealt with under the earlier element; the officer relied on the matters I referred to earlier as giving rise to such a suspicion on my part, and for the reasons stated earlier I consider that those matters provided reasonable grounds for such a suspicion.
Effective control
- [19]With regard to the question of whether there were reasonable grounds for a suspicion that the property is subject to the effective control of the respondent, the affidavit[19] deposed to the fact that the jointly owned property, being the monies standing to their credit in the CBA account, was at the time of swearing the affidavit in fact held by the official trustee pursuant to paragraph 5 of the order made on 13 April 2006. Although the affidavit does not say so, presumably all of the shares held in the CommSec share portfolio, which were also jointly owned, were in fact held by the official trustee pursuant to that order. This gives rise to a question of whether at the time the application was made, and indeed now, the respondent’s wife’s interest in the jointly owned property was actually in the effective control of the respondent.
- [20]In Director of Public Prosecution (Cth) v Hart (No 2) [2005] 2 Qd R 246 McPherson JA with whom in this respect the other members of the court agreed quoted with apparent approval a comment in the Full Court of Western Australia[20] that effective control meant control in fact and that what was contemplated was control that was practically effective, in the sense that the person had in fact the capacity to control the possession, use and disposition of the property: p 258. The decision is also authority for the proposition that property as defined in s 338 of the Act means the thing owned, rather than the interest of ownership in it which an individual may have. In that case, the Court of Appeal declined to intervene in a finding by a single judge that property owned by various companies, of which the suspect was not a director, was nevertheless in the effective control of the suspect because the companies were controlled by friends and business associates of his, and they acted in a practical way on his instructions. That case is also authority for the proposition that it is necessary for this issue to be determined at the time the restraining order is made: [2].
- [21]It was submitted for the DPP that the material provides reasonable grounds for suspecting that, because of the family relationship between the respondent and his wife, and because of the evidence suggesting that the wife left control of investments in her name to the respondent,[21] there were reasonable grounds for suspecting that he had effective control because he could induce or procure her to act so as to require the official trustee to hand over that part of the money which represented her interest in it, and to obtain a division of the jointly owned shares. In these circumstances, it was submitted that, although the trustee had physical custody of money and the shares, the trustee had no right to retain as against the respondent’s wife her interest in that property, and that she remained free to dispose of her interest in that property notwithstanding that it was in the trustee’s physical custody. The wife, or some other person claiming through her, would be in a good position effectively to assert rights as against the official trustee in respect of that part of the property which represented her interest. In these circumstances, in view of the material available as to the nature of the relationship between the respondent and his wife, showing that the wife retained some effective control over this property was sufficient to provide reasonable grounds for suspicion that the assets were in the effective control of the respondent.
- [22]The process by which jointly owned money, ordinarily money in the form of a chose in action, is divided may be straight forward enough; in principle and subject to any argument about whether the beneficial interests follow the legal interests,[22] it is simply a matter of half the money being paid to each of the two joint owners. In those circumstances, I think there is some substance in the DPP’s argument that, although the money is in the physically custody of the official trustee, the fact that the respondent’s wife is in a position where she is entitled to require half of it to be handed over to her means that she has a capacity to control the possession use and disposition of that property in the sense contemplated in DPP v Hart (No 2) (supra).
- [23]The position with jointly owned shares, however, is more complicated. As I understand the position, in order to divide the shares it would be necessary for the parties to cooperate in a transfer of half the shares to one of them and the other half to the other, otherwise some form of legal proceedings would be necessary in order to achieve an effective division of the shares. I do not think that companies will recognise, and permit dealings in, part interests in shares. In these circumstances, I do not think it really is correct to say that the respondent’s wife is in a position where she has a capacity to control the possession, use and disposition of half of the shares, merely because she has a joint interest in the shares with the respondent, in circumstances where the respondent’s interest is in the control of the official trustee.
- [24]At the very least, the official trustee would be required to cooperate, or be subject to legal proceedings, before the respondent’s wife was placed in a position where she was free herself to deal with the shares representing her interest in the jointly owned shares. I think that until that happens, it cannot be said that the respondent’s wife has, in a practical sense, the capacity to control the possession, use and disposition of any particular shares. In those circumstances, I do not accept the DPP’s argument in relation to the shares, that there are reasonable grounds for suspecting that the respondent has effective control, because there are reasonable grounds for suspecting that he has the ability to control the conduct of his wife, and his wife has an unrestrained legal interest as joint owner in the shares.
- [25]It is therefore necessary to consider, at least in relation to the shares, the alternative ground relied on, s 337(4) of the Act. Section 337 is concerned with the meaning of effective control. Subsection (4) provides:
“If property is initially owned by a person and, within six years either before or after an application for a restraining order or a confiscation order is made, disposed of to another person without sufficient consideration, then the property is taken still to be under the effective control of the first person.”
- [26]Section 337(5)(a) provides that in determining whether or not property is subject to the effective control of a person, regard may be had to family, domestic, and business relationships between persons having an interest in the property. The term “sufficient consideration” is defined in the dictionary in s 338 of the Act as:
“An acquisition or disposal of property is for sufficient consideration if it is for a consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations.”
- [27]In relation to this, it was submitted that, so long as the property was transferred by the respondent to his wife within six years before the time when the application was made, the property is taken still to be under the effective control of the respondent, regardless of the actual situation at the present time. That appears to be the effect of subsection (4), which is in effect a clawback provision.
- [28]In relation to this, the argument for the DPP was that the money or almost all the money in the account, and by which the purchase of the share portfolio was funded, came from the respondent rather than his wife, on the basis of the analysis of the forensic accountant.[23] It was submitted that to the extent that the respondent’s wife acquired an interest in the funds in the account and the shares greater than her contribution that would constitute an acquisition of property by her which was not for a sufficient consideration, and the material provided reasonable grounds for a suspicion that there was an absence of sufficient consideration. The affidavit of the forensic accountant also showed that the money in the bank account and the shares were acquired within six years before the date of the application,[24] so that this provision applied to the disposition to the respondent’s wife of what is now her interest in that property.
- [29]Ultimately it did not seem to me that the respondent had any effective answer to this submission. I accept that the section operates in this way. What matters for the purpose of this element is whether there are reasonable grounds for a suspicion that the property is subject to the effective control of the respondent, which in effect means, reasonable grounds for a suspicion that the requirements of s 337(4) are satisfied in the events that have happened. In the light of the evidence to which I have referred, and my comments earlier about the effect of that test, it seems to me that there are reasonable grounds for the suspicion in the affidavit that the interest in the shares is subject to the effective control of the respondent in this way. Accordingly, this element which is the final element of s 18 is satisfied.
- [30]It follows as discussed earlier that in these circumstances I have no discretion and must make the order sought. On the application of the DPP, therefore, there will be an order in terms of the draft. There were no particular submissions advanced on behalf of the respondent in relation to the terms of the draft order sought by the DPP.
Exclusion application
- [31]Section 29(1) of the Act permits the court to exclude specified property from the order if an application is made under ss 30 or 31 and the court is satisfied that the relevant reasons under subsections (2) or (3) for excluding the property from the order exists. Since the restraining order in the present case was under s 18, the only reason stated in subsection (2) is that the property is neither the proceeds of unlawful activity nor, if an offence to which the order relates is a terrorism offence, an instrument of any terrorism offence; the latter is inapplicable in the present case. Subsection (3) is also not applicable in the present case, so the practical question is whether the property is not the proceeds of unlawful activity. By subsection (4), however, the court must not exclude property from a restraining order under s 18 unless it is also satisfied that a pecuniary penalty order could not be made against the person who owns the property or, if the property is under the suspect’s effective control, the suspect.
- [32]Accordingly, it is necessary for the respondent’s wife in this application to establish that the property is not the proceeds of unlawful activity, and to exclude the operation of a pecuniary penalty order against either her or the respondent. The written submissions on her behalf appeared to accept that this was the position, and indeed did not seek to exclude all of the property from the order, just an amount of at least $200,000.
- [33]Section 30 provides that a person whose property would be covered by a restraining order may apply to the court to exclude specified property from the restraining order “within 14 days after being notified of the application for the order.” That is the provision under which the respondent’s wife must apply; s 31, which also permits an application to be made to exclude specified property from a restraining order, permits the application to be made at any time after the person is notified of the order, but that section does not apply because the order has not yet been made. The respondent’s wife, however, faces the difficulty that subsection (2) requires leave to make an application by a person who was notified of the applications for the restraining order and either did not appear or appeared at the hearing of that application. Given that she was notified of the application for the restraining order, and indeed appeared on the hearing of the application, if she waits until after the order is made she will require leave to apply under s 31.
- [34]The application for the restraining order was served on 16 January 2007, at least so far as the respondent’s wife was concerned. On the face of it therefore she had to file her application within 14 days of that date, and this application was filed on 24 April 2007. Not having been filed within that period, it cannot now be entertained. The application before the court is not an effective application under s 30(1), being out of time. The DPP submitted that there is no express provision in the Act giving a power to extend time limits set under the Act, nor is there any applicable provision in any other Act. Although the court has power under the UCPR to extend time limits under those rules, that power does not apply to a time limit imposed under an Act,[25] and indeed could not apply to a time limit imposed under a Commonwealth Act.
- [35]It seems to me that there is really no effective answer to this submission on behalf of the DPP; the application by the respondent’s wife is out of time and therefore must fail. The necessity for an enlargement of time seems to have been recognised, since the application filed on 24 April 2007 sought such an order as the first order, in addition to an order under s 30. However, I was not referred to any applicable statutory basis upon which an extension of the time limit in s 30 could be granted by this court.
- [36]Counsel for the respondent’s wife relied on the decision of the New South Wales Court of Appeal in Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118. That case, however, was not concerned with the application of time limits, or the extension of time within which to apply under a provision of the 1992 Act. It was concerned with the question of whether an application could be made under s 31 of the Proceeds of Crime Act 1987, in circumstances where there had been a previous application under s 31 of that Act which had failed. The point was that the two provisions were similar, and an explanatory memorandum suggested that the intention was that successive applications under the two sections could not be made, but it was held that the Act did not sufficiently clearly indicate that that was the case to overcome a presumption that the Act should be construed in a way favourable to a party whose property was forfeited or was exposed to being forfeited. Without seeking to doubt the general approach to the interpretation of legislation of this nature discussed in that decision,[26] it provides no basis for a court to extend a statutory time limit if there is no statutory power to do so. In those circumstances, it seems to me that this application must fail, and for this reason it is dismissed.
- [37]I should add that there is some procedural irregularity about this application. It was filed as an application in a proceeding in file BD1976/06, although it is not correctly titled for that proceeding. To add to the confusion, the application says in the footer that it was filed on behalf of the respondent in that proceeding, the DPP. That proceeding was commenced by an originating application filed by three applicants against the DPP, seeking an order under s 73(1) of the Act, or alternatively s 72 of the Act. Various directions have been made at various times, apparently all by me, but as far as I can see that application has never come on for hearing. It is not clear how the application under s 30 was properly brought as an application in that proceeding. In any case, it appears clear that the application of 24 April 2007 is the application that is before me, that is an application only by Chau Tu Vuong, that application is out of time, and therefore must fail, and is therefore dismissed.
Merits of the application
- [38]In these circumstances it is unnecessary to consider the alternative submission on behalf of the DPP, that the application should be stayed pending the determination of the criminal proceedings against Mr Ngo. In the further alternative, the DPP submitted that the application must fail on its merits. The respondent’s wife in her affidavit[27] said that since 1979 she has worked full‑time except for a brief time after the birth of her son, born in May 1992. She has for the last eight years worked as an office clerk for a private company; prior to that for three years she was a receptionist. In 1993 she was paid just under $21,000 by a known person as a gift, which she said was used for share trading. She exhibited a letter from the ANZ Bank of 18 June 1993 advising of the receipt of a transfer which had been credited to her account with the Fortitude Valley branch of that bank having a particular number. Apart from saying that the money was used for share trading, there was no information as to what happened to that money after 1993.
- [39]She said that in 1987 she purchased a house in the Valley for $34,000, which was sold to her husband in 1992 for $110,000; she understood that he borrowed most of the purchase price. She exhibited a letter (sent to her husband) showing that $98,000 was paid over on settlement by the Commonwealth Bank of Australia and that the settlement occurred on 21 August 1992. She said that she gave the money she obtained to her husband to invest on her behalf on the share market. She provided no further information as to what was done with this money. She said that in 1988 they bought a property at West End through a company Lislaw Pty Ltd. She did not say how the purchase price of that property was funded, but she said that following its sale in about 1993 approximately $25,000 was received by her, which she gave to her husband to invest on her behalf.
- [40]She said that between 1989 and 1999 she earned over $115,000; she exhibited copies of her tax returns from 2000 until 2005, although the copies are undated. The first shows gross interest of $524; the rest show gross interest of over $2,000 each. The first shows franked dividends of over $4,000, and the dividends increase each year so that by the 2005 return they are almost $23,000, by this time more than the gross wages. However, the returns show only the amount of dividends, that they were franked and the franking credits, so there is no information as to what shares were held and generating this income.
- [41]She said in paragraph 18 that she had given most of her income to her husband to invest for her, which she understood as being in the share market, though some of her income had been used on household expenses. In paragraph 19 she identified the amounts given to her husband as being at least $50,000 between 1989 and 1999, at least $70,000 between 2000 and 2005, and the three specific amounts referred to earlier. She said that she believed that half of the joint bank accounts and half of the Commsec share portfolio belonged to her, and swore that none of this money was the proceeds of any crime. She also provided some personal information which is not relevant to the question of how the property was funded.
- [42]In support of the application an affidavit by an accountant[28] was read, but this contained little more than a rehash of the material in the affidavit of the respondent’s wife. There were some additional documents. Annexure 3 was a copy of a home loan summary for an account in the name of the respondent between January 1999 and 30 June 1999, showing that during that period there were payments or repayments of just under $62,000, although there were also withdrawals of $16,000. That suggests that the respondent had access to some significant funds during that period.
- [43]There was also what was said to be a calculation of taxable income during the period 1 July 1989 to 30 June 1999 inclusive on the basis of the documentation and calculations set out in Annexure 7. This, which does not purport to be a comprehensive statement, seems to me to raise more questions than it answers. It reveals no taxable income for the years ended 30 June 1990, 1993, and 1994, and taxable income of less than $10,000 in the years ended 30 June 1995 and 1996. There is no gross interest disclosed for any year, and no dividends disclosed prior to 1 July 1994, notwithstanding that the respondent’s wife said that the money obtained from the sale of the house in August 1992 was given to her husband to invest in the share market, along with money received in June 1993. Although the respondent’s wife said she had worked full‑time since 1979 except for a brief time after the birth of their son in May 1992, nothing was disclosed which could amount to full‑time earnings prior to the year ended 30 June 1999; other earnings which must have been part‑time were disclosed in respect of the three previous financial years, but the document also disclosed social security payments during those three years, which suggests that she was not working full‑time during that period. Although there was what was described as unknown income for the years ended 30 June 1989, 1991, and 1992 of about $20,000 in each, if this was salary or wages from working full‑time it is surprising that the details of this cannot be more clearly identified.
- [44]The only information about shareholding provided in this material are a series of dividend advices, which show that from December 1994 through to June 1999 the respondent’s wife held 1,000 CSR Limited shares, and that from 31 December 1994 she held 2,670 Commonwealth Bank shares to which in due course 730 instalment receipts were added. Evidently these in due course matured into further shares, but on 6 January 1998 under a buyback scheme she sold 359 of these shares, leaving her with a balance of 3,041 shares which she retained as at 26 March 1999. This is surprisingly little information. These two shareholdings do not appear to be sufficient to account for all the money said to have been provided for investment in the stock market, and there is no information as to any other shares. According to the respondent’s lawyers, as at July 2006 the respondent’s wife owned 2,500 Commonwealth Bank shares and 1,000 shares in CSR Ltd, apart from the half interest in the Commsec share portfolio.[29] Presumably these shares are not covered by any restraining order at the present time. If that is so, there is simply no information available in support of this application as to how any money provided to the respondent in about 1993, or for that matter at any other time, comes to be reflected in the jointly owned assets.
- [45]I doubt whether it would be reasonable, in the absence of better evidence, to assume that there is a direct connection extending over that period of upwards of 10 years. But in circumstances where the DPP’s evidence suggests that there is an entirely different source for the current balance in the jointly owned bank account, and share portfolio, it is I think simply not good enough just to say that in about 1993 funds were made available to the husband to invest in the share market, and say nothing about what happened with them thereafter. Buying, selling, and holding shares generates documents; documents in connection with dividend payments, such as the ones exhibited to Mr McKinnon’s affidavit, to which I have referred. If shares are bought or sold through a stockbroker there will be contract notes, there may well be statements or other documents. There will be CHESS statements, annual reports, notices of meeting, and, not infrequently, a host of documents associated with takeovers. Banks issue bank statements from time to time, and can generally be persuaded, by the payment of appropriate fees, to provide copies of statements which have been issued in the past. But there is simply no material at all from the respondent or his wife to show how the money or the shares currently held in these accounts came to be there.[30]
- [46]There is also no material to attack the analysis of the accountant who has investigated the respondent’s affairs for the DPP and concluded that these assets essentially represent funds provided by the respondent.[31] An affidavit by an accountant has been filed, and the respondent has had the DPP’s material for a considerable time, but he said nothing of significance about it. The DPP’s accountant was aware of the sale of the house in 1992.[32] In addition, income of the respondent’s wife for the period 2000 to June 2005 was taken into account in that report. In particular, the accountant was unable to identify any assets held by either the respondent or his wife as at 1 January 2000 apart from an amount of $111,088 and the house then owned by the respondent. This included two amounts totalling $92,000 which did not contribute to either the shares or the bank account currently restrained.
- [47]There is also the consideration that there is evidence that the respondent lost more than $670,000 gambling at Jupiter’s Casino between 1995 and August 1998, when he was excluded from the Casino.[33] The reports refer to a different name, but of a person who gave his telephone number as the telephone number given by the respondent as his home telephone number during his examination,[34] and who has the same date of birth.[35] I think it is a reasonable inference that the person spoken of in the casino reports was the respondent.
- [48]In these circumstances I am not prepared to conclude that the money made available by the respondent’s wife in around 1993, or at other times out of income, as deposed to in her affidavit, is reflected to any extent in the shares in the joint share trading account, or the funds in the joint bank account. Accordingly, even if the application were within time, I would dismiss it on the merits, on the basis that I am not persuaded in the light of all the material on the balance of probabilities that the interest of Mrs Vuong is not the proceeds of unlawful activity for the purposes of s 30 of the Act. I proceed on the basis that the onus is on Mrs Vuong to show that this is the case, on the balance of probabilities. I would therefore dismiss the application anyway on the merits even if it had been made within time.
Footnotes
[1] I shall refer to him as “the respondent”, and to Chau Tu Vuong as “the respondent’s wife”.
[2] Affidavit of Bishop filed 6 October 2006 para 21 as to Queensland Duty Free, para 26 as to Peace Duty Free.
[3] Affidavit of Gibb filed 14 June 2006 Exhibit AG7.
[4] See also Affidavit of Wu filed 11 April 2006 para 7.
[5] Affidavit of Drake filed 4 October 2006 (customs duty); Affidavit of Bishop filed 6 October 2006 (excise duty).
[6] Affidavit of Drake filed 4 October 2006 para 11.
[7] Affidavit of Bishop filed 6 October 2006 para 35.
[8]Affidavit of Bell filed 6 October 2006 para 3.
[9] Affidavit of Dolan filed 12 December 2006, Exhibit A. See esp. para 76.
[10] Affidavit of Bell filed 6 October 2006 para 4.
[11] Affidavit of Wu filed 11 April 2006 esp. para 6; Affidavit of Chin filed 15 November 2006 esp. paras 6, 7.
[12] Affidavit of Lin filed 8 November 2006 para 10.
[13]Hussein v Chong Fook Cam [1970] AC 942 at 948, cited in George v Rockett (1990) 170 CLR 104 at 115-6.
[14] Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 at 1025; Manley v Tucs (1985) 40 SASR 1 at 9.
[15] R v Raso (1993) 68 A Crim R 495 at 506.
[16] Hussein (supra).
[17] Affidavit of Tran filed 28 February 2007 para 5.
[18] Filed 16 January 2007.
[19] Affidavit of Potts filed 16 January 2007.
[20] Connell v Lavender (1991) 7 WAR 9 at 22 per Rowland J
[21] Affidavit of Vuong filed 24 April 2007 paras 11, 18.
[22] The respondent in his examination did not claim an equitable interest greater than his legal interest in the money. Affidavit of Potts para 7; Affidavit of Gibb filed 14 June 2006, Exhibit AG7 p 83.
[23] Affidavit of Dolan filed 16 January 2007.
[24] Ibid para 17.
[25] Westpac Banking Corporation v Commissioner of State Revenue [2005] QCA 327 at [21].
[26] See also Jeffrey v DPP (1995) 79 A Crim R 514.
[27] Filed 24 April 2007.
[28]Affidavit of McKinnon filed 26 April 2007.
[29] Affidavit of Tran filed 7 July 2006 para 10(h).
[30] In contrast, the analysis of the DPP suggests that the purchase money must have been contributed substantially by the respondent, and none of the shares now held was acquired prior to October 2002: Affidavit of Dolan filed 16 January 2007.
[31] Affidavit of Dolan filed 16 January 2007.
[32] Affidavit of Dolan filed 12 December 2006 Exhibit A para 11.
[33]Affidavit of Long filed 2 April 2007
[34] Affidavit of Tran filed 7 July 2006 Exhibit TT-1 p 6 line 42.
[35]Ibid p 5 line 34. Cf Affidavit of Long para 4.