Supreme Court New South Wales

• Medium Neutral Citation: New South Wales Crime Commission v Vu [2012] NSWSC 129
• Hearing dates: 31 January 2012, 1 February 2012, 2 February 2012
• Decision date: 29 February 2012
• Jurisdiction: Common Law
• Before: Johnson J

Decision

1. The Defendant is ordered to pay to the Treasurer the amount of $922,738.00 by way of a proceeds assessment order under ss.27 and 28(3) Criminal Assets Recovery Act 1990 .

2. The Defendant is to pay the Plaintiff's costs of the proceedings.

• Catchwords: CONFISCATION - application for proceeds assessment order under Criminal Assets Recovery Act 1990 - whether Defendant had engaged in serious crime-related activity - obtaining financial advantage by false or misleading statement contrary to s.178BB Crimes Act 1900 - provision of false employment documents in support of loan application - proper foundation for order established - assessment of order - evidence of Defendant's expenditure over six-year period - onus on Defendant under s.28(3) to establish that expenditure was funded from sources unrelated to an illegal activity or activities - Defendant fails to discharge onus - quantum of order calculated under s.28(3) - order made
• Legislation Cited: Criminal Assets Recovery Act 1990; Crimes Act 1900; Evidence Act 1995; Civil Procedure Act 2005; Uniform Civil Procedure Rules 2005
• Cases Cited: New South Wales Crime Commission v Kelaita [2008] NSWCA 284; 75 NSWLR 564; International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319; Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419; Palmer v Dorman [2005] NSWCA 361; Director of Public Prosecutions (Cth) v Xu [2010] NSWSC 842; 202 A Crim R 279; Browne v Dunn (1894) 6 R 67; Khamis v R [2010] NSWCCA 179; 203 A Crim R 121; National Australia Bank Limited v Thirup [2011] NSWSC 911; New South Wales Crime Commission v Elie Akiki (Greg James J, unreported, 3 December 2002); Jones v Dunkel [1959] HCA 8; 101 CLR 298; Manly Council v Byrne [2004] NSWCCA 123; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186
• Texts Cited: ---
• Category: Principal judgment
• Parties: New South Wales Crime Commission (Plaintiff); Thi Thanh Houng Vu (Defendant)
• Representation: Mr ID Temby QC (Plaintiff); Mr P Tran (Defendant's Solicitor); NSW Crime Commission (Plaintiff); Tran Solicitors and Attorneys (Defendant)
• File Number(s): 2009/296863
• Publication restriction: ---

Judgment

1 JOHNSON J : By Summons filed on 28 October 2009, the Plaintiff, the New South Wales Crime Commission, sought certain orders against the Defendant, Thi Thanh Houng Vu, under the Criminal Assets Recovery Act 1990 ("CAR Act").

2 On 28 October 2009, RA Hulme J made an interlocutory restraining order with respect to certain specified property and other incidental orders.

The Present Application

3 In the Summons, the Plaintiff sought an order pursuant to s.27 CAR Act that the Defendant pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived from the Defendant's illegal activities that took place not more than six years before the making of the application to the Court.

4 The final hearing of the application for a s.27 order proceeded before me between 31 January 2012 and 2 February 2012. The Plaintiff was represented at the hearing by Mr ID Temby QC and the Defendant by Mr P Tran, solicitor.

Evidence Adduced at the Hearing

5 At the hearing, the Plaintiff read the following affidavits:

(a) affidavit of Thi Tam Nguyen (also known as Michelle Ling) (hereinafter "Michelle Ling" or "Ms Ling" ) affirmed 9 August 2011 (a proprietor of Coogee Bay Tobacconist);

(b) affidavit of Hung Ly sworn 8 August 2011 (mortgage broker, Lucky Dragon Home Loans Pty Limited):

(c) affidavit of Paul Spencer affirmed 5 September 2011 (Credit Review Investigations Officer for Advantedge Financial Services Pty Limited);

(d) affidavit of Mark Wayne Seagrave sworn 9 September 2011 (Forensic Accountant, New South Wales Crime Commission);

(e) affidavit of Paul Charlton sworn 8 August 2011 (Credit Manager, GMAC Australia LLC);

(f) affidavit of Michael George Clifford Halling affirmed 11 August 2011 (Acting Director, Border Operations Support Section, Department of Immigration and Citizenship);

(g) affidavit of Graeme Stevens sworn 12 August 2011 (Regulatory Affairs Manager, Tabcorp Limited as licence holder and operator of Star City Casino Sydney);

(h) Jamie Lee sworn 25 August 2011 (Manager, Vina Money Transfer Pty Limited);

(i) Teh Phong Dang sworn 25 August 2011 (Consultant, Ho & Ta Pty Limited trading as Hai Ha Money Transfer);

(j) Mark Allingham sworn 5 August 2011 (Compliance Officer, St George Bank);

(k) Tryna Aliivaa sworn 5 August 2011 (Compliance Officer, Commonwealth Bank of Australia);

(l) Septimus Charles Rivers sworn 10 August 2011 (Team Leader in the Centralised Monitoring Business Unit, NSW Office of Liquor Gaming & Racing).

6 In addition, the Plaintiff tendered a number of documents, including a transcript of the examination of the Defendant before Deputy Registrar Calabretta on 26 August 2010. That transcript was admissible in the proceedings under s.54(5) CAR Act and was admitted, in any event, without objection.

7 An affidavit of the Defendant affirmed on 31 January 2012 was read in the Defendant's case. In addition, a number of documents were tendered in the Defendant's case.

8 The following witnesses were required for cross-examination and gave oral evidence:

(a) Michelle Ling (T12-20);

(b) Hung Ly (T20-39);

(c) Graeme Stevens (T40-49);

(d) Mark Wayne Seagrave (T50-52);

(e) the Defendant (T69-88).

9 Short evidence was given by Alexandra Bishop, the solicitor for the Plaintiff (T55-59), on a leave application made in the course of the hearing, but that evidence does not bear upon any issue to be determined in this judgment.

The Issues to be Determined

10 The issues to be determined by the Court are:

(a) whether a proceeds assessment order ought be made against the Defendant under s.27 CAR Act; and

(b) if such an order should be made, whether that order should be assessed in accordance with s.28(3) CAR Act and, if so, in what amount.

11 Certain basic facts are not in dispute. In March-April 2008, the Defendant applied for finance in the sum of $184,000.00 for the purpose of purchasing a home unit at Bankstown. The Defendant made application for finance using a mortgage broker, Hung Ly.

12 The application for finance stated falsely that the Defendant had been employed by Coogee Bay Tobacconist since 17 August 2005, with an annual salary package of $45,657.00. The loan application was accompanied by a letter dated 26 March 2008, purportedly from Coogee Bay Tobacconist, certifying this employment, together with two payslips said to relate to the Defendant's employment at Coogee Bay Tobacconist in March 2008.

13 Both the Plaintiff and the Defendant agreed at the hearing that these documents were false and that the Defendant had, at best, worked for a few days in about 2005 with that employer.

14 There was no issue at the hearing that the false documents played an operative role in the decision of the lender to extend finance in the sum of $184,000.00 to the Defendant. The documentary evidence provided abundant support for this conclusion.

15 Mr Temby QC submitted that the Court should find, on the balance of probabilities, that the Defendant had engaged, in the six-year period before 28 October 2009, in a serious crime-related activity involving an offence punishable by imprisonment for five years or more: s.27(2)(b) CAR Act. The serious crime-related activity alleged by the Plaintiff was an offence punishable by imprisonment for five years or more which involved fraud: s.6(2)(d) CAR Act. In this case, the Plaintiff pointed to an offence under s.178BB Crimes Act 1900 , an offence punishable by imprisonment for five years.

16 Mr Tran did not dispute that the circumstances revealed in the evidence would disclose involvement by the Defendant in serious crime-related activity, if the Plaintiff established that the Defendant knew that false documents were being supplied in support of her application for finance. However, Mr Tran submitted that the Court should not make such a finding on all the evidence.

17 The first issue to be determined involves resolution of this question, namely whether the Defendant was aware that false documents were being furnished in support of her finance application.

18 The second issue involves quantification of any proceeds assessment order to be made against the Defendant, if the first issue is resolved adversely to her. As will be seen, the second issue involves an examination of evidence concerning the Defendant's expenditure during the six-year period from 28 October 2003 to 28 October 2009 and what findings ought be made concerning this expenditure, including the question whether it was funded from income or money from other sources, unrelated to an illegal activity or activities for the purpose of s.28(3) CAR Act.

19 The Plaintiff submits that a proceeds assessment order should be made against the Defendant in the sum of $922,742.00. The Defendant resists that claim and contends that, if any order is to be made, it should not exceed the sum of $184,000.00.

The Scheme Under the CAR Act

20 Before moving to factual issues falling for determination, it is appropriate to refer to the relevant statutory scheme in the CAR Act.

21 The CAR Act is far-reaching in its operation. Section 3 describes the principal objects of the CAR Act in the following way:

"3 Principal objects

The principal objects of this Act are:

(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and

(a1) to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion that the person has engaged in a serious crime related activity (or has acquired any of the proceeds of any such activity of another person) unless the person can establish that the wealth was lawfully acquired, and

(b) to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity in the previous 6 years or acquired proceeds of the illegal activities of such a person, and

(b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and

(c) to enable law enforcement authorities effectively to identify and recover property."

22 Proceedings under the CAR Act are civil, not criminal. Section 5 provides:

"5 Proceedings are civil, not criminal

(1) For the purposes of this Act, proceedings on an application for a restraining order or a confiscation order are not criminal proceedings.

(2) Except in relation to an offence under this Act:

(a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act, and

(b) the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act."

23 A proceeds assessment order falls within the definition of a "confiscation order" in s.4(1) CAR Act.

24 The term "proceeds assessment order" is defined in s.4(1) as meaning an order under s.27 and in force. Section 27 concerns the making of such an order, and relevantly provides:

"27 Making of proceeds assessment order

(1) The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2) or (2A).

(2) The Supreme Court must make a proceeds assessment order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the order, engaged in:

(a) a serious crime related activity involving an indictable quantity, or

(b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.

...

(3) A finding of the Court for the purposes of subsection (2) or (2A) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based:

(a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, or

(b) on a finding that some offence or other constituting a serious crime related activity was committed involving some quantity or other that was an indictable quantity.

(4) The references in subsections (1) and (2) to a period of 6 years include a reference to a period that began before the commencement of this section.

... ."

25 The term "illegal activity" is defined in s.4(1) as meaning, amongst other things, "a serious crime related activity" .

26 Section 6(1) and (2)(d) are presently relevant to the question of "serious crime related activity" in this case:

"6 Meaning of 'serious crime related activity '

(1) In this Act, a reference to a serious crime related activity of a person is a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged:

...

(2)(d) an offence that is punishable by imprisonment for 5 years or more and involves theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide, or

..."

27 Once the Court has determined to make a s.27 order, s.28 operates concerning the assessment of the order. Section 28 relevantly provides:

"28 Assessment for proceeds assessment order - illegal activity proceeds

(1) For the purpose of making an assessment for a proceeds assessment order under section 27 in relation to the proceeds derived by a person (in this section called the defendant) from an illegal activity, or illegal activities, of the person or another person the Supreme Court is to have regard to the following matters:

(a) the money, or the value of any interest in property other than money, directly or indirectly acquired by:

(i) the defendant, or

(ii) another person at the request, or by the direction, of the defendant,

because of the illegal activity or activities,

(b) the value of any service, benefit or advantage provided for:

(i) the defendant, or

(ii) another person at the request, or by the direction, of the defendant,

because of the illegal activity or activities,

(c) the market value, at the time of the illegal activity or of each illegal activity, of a plant or drug similar, or substantially similar, to any involved in the illegal activity or each illegal activity, and the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity or each illegal activity,

(d) the value of the defendant's property before and after the illegal activity or each illegal activity,

(e) the defendant's income and expenditure before and after the illegal activity or activities.

(2) If evidence is given at the hearing of an application for a proceeds assessment order that the value of the defendant's property after an illegal activity or illegal activities of the defendant exceeded the value of the defendant's property before the activity or activities, the Supreme Court is to treat the excess as proceeds derived by the defendant from the activity or activities, except to the extent (if any) that the Supreme Court is satisfied the excess was due to causes unrelated to an illegal activity or activities.

(3) If evidence is given at the hearing of an application for a proceeds assessment order of the amount of the defendant's expenditure during the period of 6 years before the making of the application for the order, the Supreme Court is to treat any such amount as proceeds derived by the defendant from an illegal activity or activities, except to the extent (if any) that the Supreme Court is satisfied the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities.

(3A) The Supreme Court is not to take expenditure into account under subsection (3) to the extent that the Court is satisfied that it resulted in the acquisition of property the value of which is taken into account under subsection (2).

(4) In making an assessment as provided by this section, none of the following amounts are to be subtracted:

(a) expenses or outgoings incurred by the defendant in relation to the illegal activity or activities,

Note. For example, in the case of an illegal activity involving the sale of drugs, in determining the value of the proceeds derived by the defendant from the sale of drugs there is to be no reduction on account of any expenditure by the defendant in acquiring the drugs.

(b) the value of any proceeds derived as agent for or otherwise on behalf of some other person (whether or not any of the proceeds are received by that other person).

Note. For example, where the defendant is paid money for drugs in the course of a 'controlled buy' but was acting merely as an agent or messenger for some other person (and gives the money to the other person), in calculating the proceeds derived by the defendant the amount given to the other person is not to be subtracted and the full amount is considered to have been derived by the defendant.

(5) This section applies to, and in relation to:

(a) property that comes into the possession, or under the effective control, of a person either within or outside New South Wales, and

(b) proceeds acquired either within or outside New South Wales in relation to an illegal activity.

... ."

28 The background to, and operation of, the CAR Act was considered by the Court of Appeal in New South Wales Crime Commission v Kelaita [2008] NSWCA 284; 75 NSWLR 564. After reference to the second reading speech with respect to the legislation, Allsop P (Giles and Bell JJA agreeing) observed at 568 [12]:

"Further, the speech recognised that the legislation might be perceived to be unfair by some. It was certainly intended to be 'tough'. Again, these were rhetorical statements which do not assist in resolving questions about the precise linguistic content of the present text. They do, however, assist in appreciating that unless the express safeguards provided for in the Act (often resting on a reversed onus) are engaged, it may be seen as surprising to interpret or construe the Act in a way based on 'fairness' to the person proved to have been engaged in serious crime related activities. Indeed, as will be seen, the Act provides in terms for operation of the machinery of recovery in ways that, from one perspective, could be taken to display an element of unfairness."

29 Allsop P touched upon the construction of s.28 CAR Act. The President said at 577 [38]-[40]:

"38 The assessment task set out in s 28 is an apparently comprehensive and complete regime. Section 28 sets out relevant considerations (s 28(1)) and the kinds of evidence that can be led with relevant consequences (s 28(2) and (3)). For instance, s 28(3) is clear that the Court 'is to treat' the amount of expenditure in the period as relevant proceeds. This is not an indication of flexibility as the primary judge thought.

39 It can also be seen that in s 28 the proceeds are calculated without regard to the costs or outgoings of the criminal operation: s 28(4)(a) and without regard whether proceeds are derived as an agent: s 28(4)(b). From one perspective, neither of these provisions is fair.

40 The terms and structure of Parts 2 and 3, and Divisions 1 and 2 of Part 3 in particular, do not display any intention to be fair beyond those specific provisions that deal with amelioration of the effects of the Act."

30 Allsop P said at 578 [46]-[49]:

"46 Further, to make ss 22 and 27 complement each other through the word value, as her Honour did, may be unfair to the Crown. Unless it can be proved that the proceeds calculated under s 28 for the order under s 27 did purchase (in full) the forfeited asset and that there were no other illegally derived proceeds, the approach of the primary judge may limit the recovery of assets that may have been illegally derived. Unless the Court were satisfied that the value of proceeds proved under s 28 for the order under s 27, was the extent of illegally derived proceeds that had been generated by the person, some double counting under ss 22 and 27 may not be 'unjust'. The appellant proves what it can under s 28. It is then entitled to an order under s 27. That does not mean, however, that it can be assumed that all illegally derived proceeds have been identified. Double counting may be unfair, it may not be. To be concluded that it is, one would need to be satisfied of the full universe of illegally derived proceeds.

47 The kind of value judgements as to what is fair or not, what degree of precision is required and when double counting should be taken into account are all matters to which Parliament has directed itself expressly.

48 I see no ambiguity or lack of clarity in ss 27 and 28. The order under s 27 can be made even though an asset forfeiture order can also be made: s 27(6). The order under s 27 is in relation to the value of proceeds calculated by reference to s 28.

49 There is no basis to read into the word 'value' in s 27(1), or into any part of s 27 any authority to deduct from a calculation made under s 28, a sum referable to the value of assets forfeited under another section in another Division of Part 3."

31 The first issue requires the Plaintiff to establish, on the balance of probabilities, that the Defendant was knowingly engaged in serious crime-related activity in the form of an offence that involves fraud, identified here as an offence under s.178BB Crimes Act 1900 .

32 There was no issue before me that an offence under s.178BB Crimes Act 1900 was capable of falling within the general description in s.6(2)(d) CAR Act of "an offence that is punishable by imprisonment for 5 years or more and involves ... fraud" . This part of s.6(2)(d) refers generally to classes of crimes, without express reference being made to specific statutory provisions which create the offences. A wide variety of conduct is mentioned, including fraud, and an offence under s.178BB falls within that description: cf International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at 358-359 [73], 368 [105].

33 In determining whether the Plaintiff has discharged the civil standard of proof on the first issue, the Court should take into account the gravity of the matters alleged against the Defendant: s.140(2)(c) Evidence Act 1995 . Section 140(2) imports the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 in requiring a court, when considering whether it is satisfied on the balance of probabilities, to take into account the gravity of the matters alleged in relation to the question: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [61]; Palmer v Dorman [2005] NSWCA 361 at [40]-[47]; Director of Public Prosecutions (Cth) v Xu [2010] NSWSC 842; 202 A Crim R 279 at 285 [30]-[33].

34 If the Plaintiff succeeds on the first issue, then it is for the Plaintiff to establish, on the balance of probabilities, for the purposes of s.28(3) CAR Act, the Defendant's expenditure during the period of six years before 28 October 2009. If the Plaintiff satisfies the Court on the civil standard of that expenditure, the Court is to treat that amount as proceeds derived by the Defendant from an illegal activity or activities, except to the extent that the Court is satisfied by the Defendant, on the balance of probabilities, that the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities.

35 The assessment task under s.28 is "an apparently comprehensive and complete regime" , with the Court required "to treat" the amount of expenditure in the period as relevant proceeds: New South Wales Crime Commission v Kelaita at 577 [38] (see [29] above). The method of assessment under s.28(3) is not confined, in the circumstances of this case, to the proceeds of the alleged s.178BB offence. Section 28(3) provides for the Court "to treat any such amount as proceeds derived by the defendant from an illegal activity or activities" . Attention is not confined to the alleged illegal activity which triggered the application in this case, being the alleged serious crime-related activity surrounding the use of false documents in support of the loan application.

36 The statutory scheme contained in the CAR Act provides its own mechanisms which, as Allsop P observed in New South Wales Crime Commission v Kelaita at 568 [12] (see [28] above), at times involve reversed onus provisions.

37 Further, the CAR Act has a number of provisions for the amelioration of the rigours of its application, including the avoidance of double counting under s.28: New South Wales Crime Commission v Kelaita at 577 [34].

Findings of Fact on First Issue - The Defendant's Knowing Involvement in Provision of False Documents in Support of Her Loan Application

38 What follows constitutes findings of fact which I have made for the purpose of determining the proceedings. Many factual matters are not disputed. Where there is dispute, I will explain the findings which I have made.

The Defendant in Australia

39 The Defendant was born in Vietnam on 7 October 1975. She arrived in Australia in October 1994, accompanied by her son. Before her arrival in Australia, she was a resident of Hong Kong.

40 From October 1994 until 2009, the Defendant was continuously in receipt of Centrelink benefits as a single mother. The father of her son continued to reside in Hong Kong.

41 The Defendant has resided continuously in Australia since 1994. She has had two daughters since then, born in 1995 and 2001 respectively. The daughters were born to separate fathers and it does not appear that the Defendant has resided with either of these men. The Defendant is a permanent resident of Australia.

42 Up to 2008, the Defendant had never lodged a tax return.

43 The Defendant had worked for a short period in about 2008 at a nail beauty salon in Bondi Junction. At an earlier time, probably in 2005, the Defendant had worked for about two days (as a trial period) at the Coogee Bay Tobacconist at Coogee. The Defendant, through her sister, Thi Ngoc Bich Vu, knew the persons who conducted that business, including Michelle Ling. Apart from this period, the Defendant did not work at the Coogee Bay Tobacconist business. It was certainly not the case that she was employed as a shop supervisor at that business in and after August 2005 with an income of $45,657.00 per annum.

44 I observe that a total sum of $160,896.00 was received by the Defendant from Centrelink between 29 October 2003 and 28 October 2009. There is no evidence before the Court as to what declarations, if any, the Defendant made to Centrelink in support of applications for payment of benefits during this period. It is not part of the Plaintiff's case that any alleged illegality arises from dishonest or irregular obtaining of Centrelink benefits during this period. It is sufficient to observe that there is no dispute that the Defendant was in receipt of Centrelink benefits throughout the relevant six-year period, whilst being involved in very little paid work.

45 The Defendant has been a regular gambler since 1998, if not before. She was registered as a Star Club patron at the Star City Casino, Sydney on 6 August 1998, with a card bearing a patron number being assigned to her thereafter. The evidence of Mr Graeme Stevens, based upon Star City Casino records, of activities conducted using the Defendant's patron number, reveals substantial gambling by the Defendant in and after 1998.

46 Star City Casino records, tendered through Mr Stevens, disclose that the Defendant was a regular gambler using poker machines and table gambling, described in the Defendant's examination before the Registrar on 26 August 2010, as black jack and baccarat.

47 In addition, a range of banking records in evidence disclose cash withdrawals by the Defendant from time to time at the Star City Casino, and withdrawals or cash advances obtained by her at other locations, including one at Belmore, in close proximity to the Canterbury Bulldogs Club, at which the Defendant said she was a regular gambler.

48 The Defendant contends that she has been a busy and successful gambler over many years, and that this level of success constitutes the source of a substantial level of income legally obtained by her. There is substantial evidence that the Defendant was an active gambler throughout the period 2003 to 2009. What findings can and ought be made, concerning the level of her success at gambling in that period, will be considered with respect to the second issue, the assessment to be undertaken under s.28(3) CAR Act.

49 It should also be observed that the documentary evidence points to the Defendant, from time to time in the subject period, making expensive purchases of luxury items at Louis Vuitton, House of K'dor and other retail outlets.

The Defendant's 2008 Loan Application

50 In or about January 2008, the Defendant informed Ms Ling that she wished to purchase a property and, for that purpose, wished to obtain a loan. Ms Ling knew Hung Ly, a mortgage broker and the managing director of Lucky Dragon Home Loans Pty Limited at Cabramatta. Ms Ling accompanied the Defendant to Mr Ly's business premises at Cabramatta and introduced the Defendant to Mr Ly. I am satisfied that this occurred on 10 January 2008.

51 The Defendant wished to purchase a home unit at Bankstown, then owned by her sister.

52 I am satisfied that, between January and March 2008, the Defendant came to understand that an essential part of the loan application was proof of employment and income. She represented to Mr Ly that she was employed, and had been for some time. I do not accept the evidence of the Defendant that she told Mr Ly, or any of his staff, that she was unemployed. Nor do I accept the evidence of the Defendant that Mr Ly, or any member of his staff, told the Defendant that it did not matter that she was unemployed as she had a 20% deposit available for the loan. In reaching this finding, I have had regard to the totality of the evidence, including the oral evidence of Ms Ling, Mr Ly and the Defendant.

53 The totality of the evidence, including the oral evidence of the Defendant, demonstrates that the Defendant is a worldly person and certainly not naive in her knowledge of finances and business affairs.

54 Whatever may have been her limitations in reading and speaking English as at March 2008, I am satisfied that she had a clear understanding, by March 2008, that evidence of employment and income was an integral part of the loan application. I accept that English is not the Defendant's first language. However, it is pertinent to observe that she came to Australia in 1994 when aged 19 years, and that she has resided in Australia since then and raised children in this country. Although it may be that her circle of associates has been largely within the Vietnamese community, as a young person living in the Sydney metropolitan area since 1994 and raising children in this city, her exposure to the English language, I infer, has been substantial. However, this aspect is of limited significance.

55 I am comfortably satisfied on the balance of probabilities, bearing in mind s.140(2) Evidence Act 1995 , that the Defendant was well aware of the need for evidence of employment and income to support her loan application.

56 The Defendant was adamant at the examination on 26 August 2010, and in her evidence before me, that she was completely unaware that a letter dated 26 March 2008, and two payslips said to relate to Coogee Bay Tobacconist, had been furnished by Mr Ly to the lender in support of the loan application. Further, the Defendant stated that she was unaware that the loan application form (which bears the date "17 March 2008" and was signed by her) described her occupation as a supervisor employed by Coogee Bay Tobacconist since 17 August 2005 at an annual salary of $45,657.00. I do not accept the Defendant's evidence to this effect.

57 Ms Ling denied in evidence that she had prepared the letter of 26 March 2008, which stated (on its face) that it was signed by "Michelle Ling" as "Shop Owner" at the Coogee Bay Tobacconist. Mr Ly stated in evidence that he was provided with the letter of 26 March 2008 and the payslips by the Defendant, and that these documents were used as part of the application thereafter.

58 Ms Ling and Mr Ly were cross-examined by Mr Tran for the Defendant. Mr Tran did not put to Ms Ling that she had prepared this letter and had provided it to Mr Ly, without the knowledge of the Defendant.

59 Mr Tran did not put to Ms Ling that she had acted improperly. Although a possible scenario is that she provided the letter and payslips to the Defendant in support of the Defendant's application, and that this was done by her knowing that the contents were untrue, I do not make any finding to that effect. Firstly, such a proposition was not put to her by Mr Tran for the Defendant. The rule in Browne v Dunn (1894) 6 R 67 has been described as a "principle of professional practice, of fair play and fair dealing" based on procedural fairness: Khamis v R [2010] NSWCCA 179; 203 A Crim R 121 at 123 [2]-[3] (Campbell JA) and 128-132 [29]-[45] (Whealy J). In written submissions, Mr Tran stated that the Defendant "does not propose to allege any person in particular has produced the documents, only that it was not the Defendant who has produced the documents" (Defendant's written submissions, 1 February 2012, page 2).

60 Nor did Mr Tran put to Mr Ly that he had, in some improper way, furnished these documents in support of the application. The cross-examination of Mr Ly rose no higher than a suggestion by Mr Tran that Mr Ly had a financial interest in the loan application being approved. No further proposition was put by Mr Tran to Mr Ly as to what Mr Ly is said to have done with this financial motive in mind.

61 Mr Ly acknowledged readily that, as a broker, he would receive a percentage of the loan amount if the application was successful. In this case, on the figures provided in evidence, that sum would amount to $1,288.00 or (at the most) twice that amount. Although no direct allegation of impropriety was put to Mr Ly in cross-examination, I record my conclusion that Mr Ly acted in accordance with proper broking practice in this case. In evidence, Mr Ly impressed as a careful and thorough mortgage broker with a firm understanding of his obligations in that capacity, acting as the Defendant's agent ( National Australia Bank Limited v Thirup [2011] NSWSC 911 at [43]).

62 It was the Defendant who had the key financial interest in the loan application being granted, with the consequence that the sum of $184,000.00 would be advanced to her. I am satisfied to the requisite standard that it was the Defendant who either furnished the letter of 26 March 2008 and the payslips to Mr Ly's office, or caused those false documents to be provided. There is no other plausible explanation for these false documents being deployed in the interests of the Defendant by some other person.

63 Certainly, in considering what inferences should be drawn from the totality of the evidence and, in particular, the contemporaneous documentary evidence, the Court should not place to one side the common sense which trial judges consistently invite juries to bring to bear in the resolution of factual issues involving alleged dishonesty. In my view, it is not to the point to determine whether telephone contact was made by Mr Ly's office on 27 March 2008 with Ms Ling to verify the Defendant's employment with Coogee Bay Tobacconist, this being an issue relied upon by Mr Tran in closing submissions. I bear in mind that the letter of 26 March 2008 was transmitted to Mr Ly's office by facsimile on 27 March 2008. That letter constituted a form of documentary verification of the Defendant's alleged employment and income.

64 Further, it is noteworthy that Mr Ly's telephone records (Exhibit D) indicate that telephone calls were made from Mr Ly's office to the Defendant's mobile phone number on 28 March 2008 (two calls) and again on 3 April 2008. Although the evidence does not disclose what was said in these telephone calls, what it demonstrates is that there was a direct line of communication from Mr Ly's office to the Defendant on important days, including the day following the receipt of the false employment letter. To my mind, telephone contact of this type is not consistent with the Defendant, in some way, being kept in the dark concerning the use of these false documents in support of her own loan application. The very clear inference is that the Defendant well knew that these statements were being made on her behalf in support of the application, even if the evidence does not permit a clear finding to be made that it was the Defendant herself who created the false documents.

65 I am comfortably satisfied that the Defendant was aware that false documents were relied upon in support of her loan application and that the lender was deceived into acting upon these false documents in extending the loan of $184,000.00 to the Defendant. I am comfortably satisfied that the Defendant, with the intention of obtaining for herself a financial advantage, made or published (or concurred in making or publishing) a statement which she knew was false in a material particular, so as to constitute conduct within s.178BB Crimes Act 1900 .

66 In reaching these conclusions which reject the Defendant's evidence in important respects, I have weighed carefully my impressions as to the Defendant's demeanour (she gave evidence largely through an interpreter) against the probabilities, and by reference to other incontrovertible facts, facts that are not in dispute and other relevant evidence in the case: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186 at 190-191 [21]-[27].

67 A foundation for a proceeds assessment order has been demonstrated by the Plaintiff, relying upon conduct not dissimilar to that found to have been established by Greg James J in New South Wales Crime Commission v Elie Akiki (unreported, 3 December 2002).

68 I am comfortably satisfied that the first issue should be resolved in favour of the Plaintiff. Section 27(2) requires the Court to make a proceeds assessment order if the Court finds it to be more probable than not that the Defendant was, at any time not more than six years before 28 October 2009, engaged in a serious crime-related activity involving an offence punishable by imprisonment for five years or more.

69 As I have stated, the only issue in controversy on this aspect was the question of the Defendant's knowledge of the use of the false documents in support of her loan application. The Plaintiff has established that the Defendant was well aware that these documents were being utilised for this purpose.

Findings of Fact on Second Issue - the Plaintiff's Application under s.28(3) CAR Act

70 The Plaintiff relies upon the evidence of Mr Seagrave, who conducted a detailed analysis of the Defendant's financial records, with the view to determining her total expenditure during the period 29 October 2003 to 28 October 2009, and then calculations concerning income unrelated to any illegal activity or activities available to the Defendant in that period.

The Defendant's Expenditure and Income Between October 2003 and October 2009

71 Mr Seagrave's affidavit explained the process which he undertook, with reference to the affidavits of Paul Spencer, Paul Charlton, Tryna Aliivaa, Michael Halling, Graeme Stevens, Jamie Lee, Teh Phong Dang and Mark Allingham. The factual foundation for Mr Seagrave's analysis was set out in his affidavit and was not challenged in cross-examination. Indeed, the cross-examination of Mr Seagrave touched briefly on two issues, with no real challenge being made to Mr Seagrave's conclusions.

72 Mr Seagrave's evidence should be understood as opinion evidence, which summarises factual material (from sources he discloses) and explains how he has reached the opinions and conclusions described. As I have said, these conclusions were not seriously challenged in cross-examination.

73 Rather, Mr Tran sought to advance a series of submissions by reference to the various categories identified by Mr Seagrave.

74 Mr Seagrave identified, at paragraph 24 of his affidavit sworn 9 September 2011, the following expenditure of the Defendant during the relevant period between 29 October 2003 and 28 October 2009:

Item	$
Purchase of Bankstown property	230,000.00
Legal costs relating to the purchase of the Bankstown property	1,298.00 (revised to $1,100.00 at the hearing)
Advantedge Loan Account repayments	95,488.00
Purchase 2007 Subaru Tribeca panel van	60,500.00
GMAC Loan Account repayments	36,247.00
Deposit on Greenacre property	1,112.00
CBA Mastercard payments	144,470.00
CBA Mastercard cash advances	95,430.00
Star City gambling	55,812.00
Repayment of loan to Van Tuan Mac	26,055.00
Overseas money transfers to Vietnam	40,238.00
Withdrawals from St George Bank account	330,594.00
Withdrawals from CBA account	146,942.00
Total Less $198.00 (the reduction of legal costs)	1,264,186.00 1,263,988.00

75 Although the onus moves to the Defendant under s.28(3) to establish that expenditure was funded from income or money from other sources unrelated to an illegal activity or activities, with no obligation on the Plaintiff to adduce evidence on this issue, Mr Seagrave did undertake calculations to identify such a figure. Where evidence of this type may be analysed to indicate legitimate income, it is reasonable for the Plaintiff to identify such evidence to assist the Court in the process of assessment being undertaken under the CAR Act.

76 In paragraph 25 and Annexure J to his affidavit sworn 9 September 2011, Mr Seagrave calculated income unrelated to any illegal activity or activities which was available to the Defendant in the total sum of $341,246.00.

77 Annexure J to Mr Seagrave's affidavit is in the form of a table indicating items of legitimate income, under various headings, for each of the six years between 29 October 2003 and 28 October 2009. It is sufficient for present purposes to list the item, and the total figure for the six-year period, brought to account by Mr Seagrave:

Item	Total $
CBA account including the following: - Opening bank balance - Centrelink/FTB payments - ATO - Cards account credit - Rental Bond Board - Eden Temp Support - First Home Owner's Grant - CBA Mastercard cash advances	4.00 160,896.00 1,982.00 39.00 1,300.00 1,158.00 7,000.00 96,630.00
St George Account including: - Opening bank balances - Visa credit	7,901.00 2,972.00
Trade on 2003 Toyota Corolla	11,500.00
GMAC Finance Loan: 2007 Subaru Tribeca	30,000.00
Loan from Van Tuan Mac: payout GMAC loan	26,055.00
Closing bank balances: - St George account - CBA account	(5,947.00) (240.00)
Total (Mr Seagrave's total is $341,246.00, but the figures add up to $341,250.00, which I will use for the purpose of assessment, the latter figure operating in the Defendant's favour)	341,250.00

78 After deducting the sum of $341,250.00 from the total sum of $1,263,988.00, the Plaintiff seeks a proceeds assessment order calculated in accordance with s.28(3) CAR Act in the sum of $922,738.00.

79 The civil onus is on the Plaintiff to establish the Defendant's expenditure during the relevant six-year period, with the onus then lying upon the Defendant to satisfy the Court that any part of that expenditure was funded from income or money from other sources unrelated to any illegal activity or activities.

80 In this regard, the Defendant relies upon her evidence alone, taken with such records as point to levels of gambling on her part. The Plaintiff submits that there is an unexplained failure on the part of the Defendant to call in her case her father, mother and sister, all of whom are suggested by the Defendant to have a capacity to give evidence which could support her case that sums of money were provided by relatives to her by way of gift or otherwise.

81 Given the finding which I have made rejecting the truthfulness of the evidence of the Defendant on a critical issue in the proceedings (her knowledge of the use of false documents in support of her loan application), it is necessary to approach her evidence with great care. In my view, I should not accept the evidence of the Defendant on any material issue unless it is corroborated by independent evidence.

82 Application of the rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298 does not assist the Defendant with respect to the unexplained failure to call her father, mother or sister to give evidence in support of her case that those persons were either sources of money to her, or had direct knowledge of the legitimate sources of money. In the circumstances of this case, I am satisfied that these persons were witnesses whom the Defendant would be expected to call in the proceedings. An inference is available, and ought be drawn, that the evidence of these persons would not have assisted the Defendant's case: Manly Council v Byrne [2004] NSWCCA 123 at [44]-[55]. There is evidence which refers to the presence of these persons in Australia at different times. However, general evidence of that type does not assist the Defendant on the important issue of the sources of money and the legitimacy of those sources.

83 It is noteworthy that a letter from the Defendant's sister dated 3 March 2008 is in evidence. That letter asserts that the sister had received from the Defendant the sum of $46,000.00 (being the balance between the sum of $184,000.00 to be borrowed and the full purchase price of $230,000.00). However, the letter did not assert (as did the Defendant) that the money had been provided to the Defendant by her parents or anyone else.

84 The body of the affidavit of Mr Seagrave explains how he came to calculate the figures included in the expenditure schedule contained at paragraph 24 of the affidavit. The reasoning of Mr Seagrave in these parts of the affidavit was not challenged. It is not necessary to record in any detail the content of the affidavit beyond the itemised schedule. I accept the evidence of Mr Seagrave contained in the affidavit which explains how the figures contained in the schedule were arrived at by him.

85 I have mentioned earlier in this judgment, areas of expenditure by the Defendant on, amongst other things, luxury items. I keep in mind that, at all relevant times, the Defendant was in receipt of Centrelink benefits with very limited periods of employment. There is a further feature of the Defendant's lifestyle referred to in the affidavit of Mr Halling, and at paragraph 13 of the affidavit of Mr Seagrave. Records of the Department of Immigration and Citizenship reveal that, between December 2003 and July 2009, the Defendant departed from Australia on no fewer than nine occasions for periods usually of between one week and four weeks in duration. Some destinations of the Defendant are not known. However, identified destinations included Vietnam, Hong Kong and Thailand.

86 Mr Seagrave states that there would have been expenditure incurred by the Defendant in these travel movements, but that he has not included such expenditure in his paragraph 24 schedule because he is unable to quantify that expenditure. This aspect fortifies a conclusion that Mr Seagrave's calculations of the Defendant's expenditure in the relevant six-year period are reasonable and conservative.

The Defendant's Gambling Activities

87 An area of controversy at the hearing was the inclusion by Mr Seagrave in the expenditure schedule of the sum of $55,812.00 as losses incurred by the Defendant at Star City Casino between 31 December 2003 and 6 January 2009. Mr Seagrave utilised the figure contained in the evidence of Mr Stevens, the Regulatory Affairs Manager employed by the owner of the Star City Casino since 1995.

88 The affidavit of Mr Stevens was based upon recorded transactions utilising the Defendant's Star Club Rewards card. Mr Stevens explained that membership rewards accrue on the card based on usage, whether the player is winning or losing (T43). He explained that the card is inserted into slot machines by the cardholder and, if used at table games, the card is given to the dealer who enters the patron's card number into the Star City Casino computer system, recording the amount of cash or chips that the patron brings to the table, and the amount held when departing the table (T40).

89 Mr Stevens acknowledged that a cardholder may gamble at the Star City Casino without using the card, so that the figures contained in his evidence may not reflect the true level of gambling by the Defendant during the relevant period. However, he explained in cross-examination that gambling at the Star City Casino without using the card would be entirely contrary to the purpose of the patron obtaining the card in the first place. He was asked (T41.36-42.2):

" [Mr Tran] Q. I suggest to you that it is quite possible that she has won at the casino and her winnings, if she had cashed it out without using the card, is not recorded in the system?

A. That's possible, but I would say that that would go against the purpose of having the membership rewards card itself because if you haven't used your card to record your play then you don't attract any benefits of the membership rewards programme, so therefore why do you have the card if you don't have the activity recorded.

HIS HONOUR

Q. What are the benefits of the rewards programme?

A. There are a range of benefits and it depends on the level of player. The higher the level the higher the rewards. Free car parking, it could be discounts to restaurants, it could be tickets to the shows, using complementary vouchers to pay for the food, hotel rooms. At the high levels you also get airfare reimbursements, limousine transfers, that sort of thing."

90 Although it is possible that the Defendant gambled at the Star City Casino without using her reward card, I think that it is improbable that she did so, given the rewards which flowed to the cardholder from its use. Accordingly, I am satisfied that Mr Stevens' calculations, utilised by Mr Seagrave, constitute a reasonably reliable record of the Defendant's gambling at the Star City Casino, culminating in a loss of $55,812.00 in the relevant period.

91 The Defendant gave evidence that, at times, she had left her reward card in a slot machine after gambling, with the result that it was necessary for her to obtain a substitute card. Mr Tran submitted that this scenario raised the prospect that another person or persons may have gambled on the particular slot machine at a time when the Defendant's card was inserted in it, so that the relevant records would attribute gambling activity to the Defendant when she did not gamble at the relevant time.

92 This issue was not taken up in cross-examination of Mr Stevens. The evidence at best for the Defendant is a generalised claim that her card was effectively misplaced in this way and later replaced by the Star City Casino. I have already expressed the view that the evidence of the Defendant ought not be accepted on any significant area, unless corroborated by independent evidence. On this aspect, I am simply unpersuaded by the uncorroborated and generalised evidence of the Defendant that her card may have been used in this way, so as to wrongly attribute gambling to her which she did not undertake.

93 There was generalised evidence from the Defendant that she gambled at other hotels and clubs, including the Canterbury Bulldogs Club at Belmore. No attempt was made by the Defendant to quantify gambling sums falling into this category, with generalised assertions being made by her at the examination on 26 August 2010, and in evidence before me.

94 The Plaintiff relied upon the affidavit of Mr Rivers sworn 10 August 2011 with respect to the general topic of gambling. Mr Rivers is employed by the NSW Office of Liquor, Gaming & Racing. In that capacity, he accessed the Central Monitoring System used by that Office which records performance details of all gaming machines in registered clubs and hotels in New South Wales. An examination of these performance details enabled the measure of the total amount gambled on gaming machines across the State in clubs and hotels, and the proportion of this sum retained as profit by clubs and hotels. Consequently, a calculation can be made of the percentage of the total amount gambled retained by clubs and hotels as profit, and the percentage of the total amount gambled returned to club and hotel patrons.

95 Speaking generally, with respect to clubs (for the period February 2003 to November 2010) and hotels (for the period March 2003 to December 2010), venue profit is in the order of 7%-10% with the return to the player being in the order of 89%-92%.

96 Mr Tran did not challenge the evidence of Mr Rivers, but submitted that no real conclusion could be formed by reference to it which assisted the determination of this case. He submits that the fact that these calculations suggest that players do not have a high rate of return cannot be applied meaningfully to the case of the Defendant.

97 He submits that the Court should find that the Defendant was a very regular and a very successful gambler at various facilities, including Star City Casino, clubs and hotels and that her evidence should be accepted that this was a very large source of her income which was legally obtained.

98 I bear in mind that under s.28(3) CAR Act, the onus lies upon the Defendant to establish that expenditure was funded from income or money from sources unrelated to an illegal activity or activities. The evidence of Mr Stevens is of direct assistance to the assessment of the Defendant's success rate whilst gambling at the Star City Casino in the relevant period. It points to her being a loser and not a winner.

99 The evidence of Mr Rivers is general at best. Nevertheless, it provides some assistance with respect to the class of gambling facilities which the Defendant has asserted, in a generalised way, were venues at which she gambled with great success in the relevant period. The statistical prospect of the Defendant being a heavy and regular winner whilst gambling at clubs and hotels has an air of improbability about it. Once again, the fact that the evidence emanates from her alone and in a generalised way, given the credibility difficulties from which she suffers, does not assist the Defendant in an area where she carries the onus of proof.

100 Mr Temby QC submitted, with considerable justification, that this was a case of a fairly income poor individual who was expending, on the evidence, in excess of $1.2 million on a variety of things, including gambling and the purchase of luxury items, and that this is a case where the Defendant is driven to rely upon a claim of large gambling winnings, inconsistent with Star City Casino records, all of which is extremely improbable. He submitted that the absence of reliable and more detailed evidence adduced by or on behalf of the Defendant was a real difficulty for the Defendant on this issue. I accept these submissions.

101 Mr Temby QC submitted later, again with substantial justification, that this was not just a case where the Defendant needed to persuade the Court that she was, on balance, a successful gambler, but that she needed to bridge a gap of massive proportions to establish that she was a successful gambler at Star City Casino and elsewhere to an extent of $800,000.00 or more. He submitted that this had not been demonstrated in this case, in particular in circumstances where the direct evidence of Mr Stevens indicated a loss in excess of $55,000.00. I accept these submissions made for the Plaintiff.

102 Mr Tran made a number of specific submissions concerning items listed in Mr Seagrave's expenditure schedule. As I have observed already, there was very little cross-examination of Mr Seagrave in an effort to impugn his calculations. I have considered the submissions made by Mr Tran in relation to these items of expenditure. In truth, the submissions repeat the assertion that items of expenditure related to the Defendant's gambling winnings, together with gifts and loans from her parents. For reasons already stated, I do not accept the evidence of the Defendant concerning her gambling winnings. Nor do I accept the uncorroborated evidence of the Defendant concerning gifts and loans from her parents.

103 I am satisfied that Mr Seagrave's expenditure schedule is reliable so that a finding ought be made on the balance of probabilities that it establishes the Defendant's expenditure during the relevant six-year period.

104 For reasons already stated, I accept the evidence of Mr Seagrave as to the quantum of legitimate income.

105 I have considered Mr Tran's submission that the proceeds assessment order should be limited to the sum of $184,000.00. An order in that sum would reflect the type of order made by Greg James J in New South Wales Crime Commission v Elie Akiki . However, no order was sought in that case calculated upon a s.28(3) basis. Such an order is sought here and the Plaintiff has demonstrated (to the extent that it bears the onus) that such an order should be made. The Defendant has not discharged the reversed onus provisions of the CAR Act. Applying the principles set out at [34] to [37] above, a proper foundation has been demonstrated for an order assessed in accordance with s.28(3) CAR Act.

106 The consequence of these findings is that the Plaintiff is entitled to a proceeds assessment order in the sum of $922,738.00.

Conclusion

107 An order should be made that the Defendant pay to the Treasurer an amount of $922,738.00 assessed in accordance s.28(3) CAR Act.

108 No claim is made by the Plaintiff for interest up to judgment under s.100 Civil Procedure Act 2005 . The Plaintiff sought in the Summons an order for interest under s.101 Civil Procedure Act 2005 . Section 101 provides for interest after judgment but, under s.101(1), such interest is payable unless the Court orders otherwise. Accordingly, the Plaintiff did not seek a specific order under s.101 in circumstances where the provision for interest after judgment will operate without a specific order.

109 The Plaintiff seeks the costs of the proceedings. The proceedings are civil in nature and the ordinary rule is that costs in civil proceedings follow the event: s.98 Civil Procedure Act 2005 ; Rule 42.1 Uniform Civil Procedure Rules 2005 . In the exercise of discretion, I am satisfied that costs should follow the event in this case.

110 I make the following orders:

(a) I order the Defendant to pay to the Treasurer the amount of $922,738.00 by way of a proceeds assessment order under ss.27 and 28(3) Criminal Assets Recovery Act 1990 ;

(b) the Defendant is to pay the Plaintiff's costs of the proceedings.

**********

Decision last updated: 29 February 2012