District Court New South Wales Medium Neutral Citation: R v Nguyen [2021] NSWDC 295 Hearing dates: 23 June 2021 – 1 July 2021 Date of orders: 2 July 2021 Decision date: 02 July 2021 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Verdict of Not Guilty Catchwords: Dealing with property, reasonable grounds to suspect the property is proceeds of crime, where property is less than 100,000 AUD in value. Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 (Cth) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Richard Nguyen (Offender) Representation: Counsel: J Gallagher (Offender) Solicitors: A Pearson (Crown/Trial Advocate) File Number(s): 20/115900 Judgment 1. On 23 June 2021, the accused Richard Nguyen pleaded not guilty to one count on an Indictment as follows: "(1) On 18 April 2020, at Newtown in the State of New South Wales, did deal with property, being $40,000 in Australian currency, in circumstances where there are reasonable grounds to suspect that the property is the proceeds of crime." 1. The offence is pursuant to s 193C(2) of the Crimes Act 1900. The trial proceeded by judge alone pursuant to s 132 of the Criminal Procedure Act 1986 ("CPA"). 2. The elements of the offence pursuant to s 193C(2) of the Crimes Act are as follows: (1) The accused dealt (2) with property, and (3) there are reasonable grounds to suspect that the property is the proceeds of crime, and (4) at the time of the dealing, the value of the property was less than $100,000. 1. The following definitions appear in s 193A of the Crimes Act 1900. "deal with" includes – "(a) receive, possess, conceal or dispose of," … "proceeds of crime" means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence. "serious offence" means – (a) an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment, or (a1) an offence against a law of the Commonwealth that may be prosecuted on indictment, or (b) the offence of supplying any restricted substance prescribed for the purposes of section 16 of the Poisons and Therapeutic Goods Act 1966 that arises under section 18A(1) of that Act, or (c) an offence committed outside New South Wales (including outside Australia) that would be an offence referred to in paragraph (a) or (b) if it had been committed in New South Wales. 1. Section 193C(3) provides relevantly as follows: (3) Without limiting subsection (1) (b) or (2) (b), there are reasonable grounds to suspect that property is proceeds of crime in each of the following circumstances— … (e) the value of the property involved in the dealing is, in the opinion of the trier of fact, grossly out of proportion to the defendant's income and expenditure over a reasonable period within which the dealing occurs 1. Section 193C(4) provides a statutory defence to the charge as follows: (4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country. 1. Pursuant to s 133(2) of the CPA, a judgment by a Judge in a Judge alone trial must include the principles of law applied by the Judge and the findings of fact upon which the Judge relies. I am also required, pursuant to s 133(3) to take into account any warning which would be given to a jury in dealing with this matter. I therefore set out a summary of the evidence adduced at trial. The Crown case 1. The Crown called Detective Senior Constable ("DSC") Nathan Simpson who is the Officer in Charge ("OIC"). On 18 April 2020, the OIC was working with Senior Constable ("SC") Chris Bradley conducting duties at the Urban Hotel Newtown as part of the COVID-19 pandemic response, looking after people who were in quarantine on their return from overseas. At approximately 11pm, when at the front of the Urban Hotel on Enmore Road, the OIC observed a motor vehicle registration number "CSI-03P" travelling south from Station Street onto Enmore Road. He identified that the vehicle was registered to the accused and that it was from an address in Leppington. 2. The OIC gave evidence that later in his shift, at around 1.45am, he was situated at the rear of the Urban Hotel on Station Street. He observed the same vehicle parked in the driveway area of 31-35 Station Street. The OIC observed a female leave the unit complex and enter the vehicle. He observed her to lean over and hand an object to the accused, who was in the driver's seat. The OIC approached the driver's side of the vehicle and the following conversation took place: "I said, 'Driver, I am Detective Simpson from the Redfern Regional Enforcement Squad. What brings you to this area tonight?'. He said, 'I'm just picking up my girlfriend. We are going for a drive'. I said, 'I saw your vehicle leave the area a couple of hours ago'. The accused said, 'Yeah, I have just been to a friend's place for dinner. Now I am back to pick up my girlfriend, and we are going for a drive'. I said, 'You can't go to your friend's place for dinner as that's a breach of the COVID‑19 restrictions as it isn't a reasonable excuse. And, you also can't go for a drive for no reason, and that's not a reasonable excuse'. The accused said, 'I mean we're going to get some food'. I said, 'Where at this hour of the morning?'. The accused said, 'The city. I mean Liverpool'. I said, 'What's the name of the place you're going to?'. The accused said, 'I don't know'. I said, 'Is it open?'. The accused said, 'I don't know'. I said, 'What are you doing at Newtown, given that you reside at a Leppington address?'" 1. The OIC gave evidence that the explanation given by the accused was not in line with the COVID-19 restrictions in place at the time. In response to being asked "what are you doing at Newtown, given that you reside at a Leppington address?" the accused said that his father lived at Unit 207, 31-35 Station Street, Newtown and that from time to time, he cared for his father. 2. A decision was then made to search the vehicle. There was no challenge by the accused as to the legality of that search. 3. The OIC gave evidence that during the search four bundles of Australian currency were found located in a hidden compartment behind the radio in the vehicle. That money was later counted and amounted to $40,000. The accused was also searched and in his possession was $1230 in Australian currency in his wallet. He also had an Apple iPhone in his possession and located in the vehicle in the centre console was a Samsung mobile phone along with a Navman. The search was recorded on bodyworn video which became Ex B and was played in court. An additional recording on bodyworn video became Ex C. 4. The accused was conveyed to Newtown Police Station where he took part in an ERISP interview which became Ex D. 5. In his ERISP interview, when asked to make any comment in relation to the money, the accused said: "Well, like, it's not, it's not, it's not a, it's not, like, it's not, like, illegally, like, claimed." When asked why he had it hidden in his car, he answered: "I was just worried that, like, that, like, um, that, that I could get in, get into trouble for it." 1. When asked further why he was carrying a large amount of money in his car in the hidden compartment, the accused answered: "Um, because I was going to, to, to pay for, to pay for some trucks… that was credited to me and then I've, I've agreed to, to pay for it." 1. The accused identified the trucks as an Isuzu and Mitsubishi truck that were to be used for courier jobs. He told police that the trucks were under his name but that he hadn't paid for them yet and was purchasing them from his cousin, Kevin Nguyen. He told police that he was going to spend all of the money on the trucks and that he was planning to make his own subcontracting delivery courier business. 2. The accused also told the police that he was not licensed to drive a truck, however, both of the trucks were registered in his name with the RMS. He further told the police that the previous owner was his "ex-truck business partner", whose name he had forgotten. The accused further told police that the money had come from his father himself and whilst he'd borrowed through friends, it mainly came from himself and his father. 3. The accused was asked as follows: "Q: If you're claiming that the money is legitimate and it's not from the proceeds of a crime, why was it hidden in such a way to try and …. for law enforcement to avoid detecting it? A: Um, well I'm, I'm… scared to answer that question but I'll try… obviously it's not a small amount of money… and you know I… didn't want this to happen, you know." 1. When asked whether he wanted to provide an explanation as to who created the hidden compartment in his car, the accused said that he was scared to answer that. He denied creating the hidden compartment himself. 2. The accused was asked about his three phones and it was put to him that he had lied to police. It was further suggested that the money was proceeds of crime or was going to be used for the proceeds of crime, which he denied. He told police that the money in his wallet had come from Centrelink as a carer's pension. 3. Ex E was a table setting out the calculation of the cash in the sum of $40,000. 4. The OIC gave further evidence about a search warrant executed at Unit 207, 31-35 Station Street, Newtown. He gave evidence that an Apple iPhone was found in the living room of those premises along with a blue Toshiba laptop, a watch and 92 clear resealable bags. 5. Ex F was an RTA certificate confirming the registration of a white Isuzu truck, being registration number AH634C, and a white Mitsubishi truck, being registration number XN5N2B. The trucks were registered in the name of the accused, however, the previous owners were a Mr Mark Wortley and Prime Transport Co Pty Ltd. That corporation had two directors, one of whom was Vinh Hung Nguyen. The OIC gave evidence that Mr Vinh Nguyen had departed Australia on 21 June 2019 and had travelled to Vietnam and had not returned. 6. The OIC gave further evidence that he took a statement from Mr Wortley over the phone and attended at his home on 23 April 2020 when he read and signed it. 7. Mr Mark Wortley was interposed to give evidence via audio visual link from Tamworth. He gave evidence that he became aware of two trucks in a rundown condition in Marrickville. The caretaker was the accused Richard Nguyen who he had known for five years. He rang Mr Nguyen and they met up and had a conversation about the trucks. The trucks were not working and they discussed getting them started, and then entering a partnership. 8. Mr Wortley gave further evidence that both he and the accused contributed $15,000 as a down payment on the two trucks. They were going to "do a partnership" and their agreement was verbal. The accused gave him the keys to the trucks and he went to a mechanic in Marrickville to get them road worthy and have them registered. That cost six or eight thousand dollars, and they "went halves" on the payment. 9. Mr Wortley gave evidence that he registered a business name and obtained an ABN. He then had a meeting with the accused at his home in Belmore during which they had an argument about the trucks. Mr Wortley gave evidence that he told the accused to "buy me out and that I didn't want nothing to do with him". 10. The Crown was given leave to ask leading questions in respect of a statement made by Mr Wortley to police on 23 April 2020. He said that he was under the influence of drugs when he made the statement and that he was in the middle of a breakdown and "divorce situation". He gave the following evidence: "Q. You told police, as a result of this meeting, the plan was that you would buy these trucks for $15,000 each from Richard Nguyen? A. Yeah, but I couldn't afford to buy them so that's when the partnership came into play. Q. That you would pay them off, you told police, when you put them to work and made money from the use of them? A. Yeah, like I said, I registered a business and got it all happening the right way, and it just didn't eventuate. Q. You told police you had a meeting with Richard Nguyen later that week when he handed you a set of car keys; is that correct? A. Truck keys. No, they were truck keys. Q. You told police in relation to the mechanic works that was completed, that the work done cost $6,000 for the trucks, which A. At least. Q. you then paid for; is that correct? A. It cost a bit more than that, but yeah, we went halves in those things." 1. He gave further evidence as follows: "Q. Do you agree that you told police that "After some discussions, an agreement was made that Richard would purchase both trucks from me for $10,000 each. Richard made a phone call and shortly after that, someone attended and provided Richard with an amount of money. Richard paid me $12,000 in cash for the trucks. He indicated the outstanding 8,000 would be fixed up in due course. I don't know any of the details of who attended and provided Richard with the $12,000." Do you agree that's in your statement? A. No. Q. You further told police that you gave Richard the keys to the truck and "We went our own separate ways." Do you agree that's in your statement? A. Yeah. Q. You state that to police, "I believe Richard transferred both trucks into his name shortly after I met him at my home in Belmore"; do you agree that's in your statement? A. Yeah. Q. And you agree that you told police, "In respect of the $12,000 that Richard paid me, I used that money to pay the bills and outstanding debts I had. I did not put the money into any account." You agree you told police this? A. More than likely. Q. You further said to police in your statement that: "Following the initial $12,000 payment from Richard, I have attempted to contact him on numerous occasions in respect to obtaining the outstanding $8,000. However, I could not go down to Richard as he would not answer his phone and it would ring out. I have left multiple messages. However, no reply." Do you agree that that's in your statement? A. Yeah. Q. Do you agree that that's the truth? A. For somewhat, yeah. Q. You told police, "In respect to Richard, I have not heard from, nor has he made any attempts to contact me from the time he paid me the $12,000." Do you agree that's in your statement? A. Yeah. Q. Do you agree that that's the truth? A. Yeah. Q. You told police: "There was and has been no arrangement to meet with anyone, including Richard, in respect to the outstanding payment which is owed to me. No acquaintances, friends or family of Richard have reached out to me to sort the outstanding debts. This includes our mutual friend that put me in contact with Richard." Do you agree that that's A. Yeah. Q. in your statement? A. Yeah. Q. Do you agree that that's the truth? A. To somewhat. Q. When you say, "somewhat", what do you mean? A. Yeah. Q. Do you agree that that's the truth? A. Yeah." 1. In cross-examination, Mr Wortley gave evidence that he knew the accused from time they spent together at Wellington Correctional Centre, where they became mates. A mutual friend, Hy Lai, had given him the accused's phone number after contacting him about the two trucks. He was interested in the trucks because he was a truck driver, and he wanted to work for himself. His plan was to buy the trucks himself and grow a business, however, the accused said "I go you halves, we'll do a partnership". Mr Wortley registered a business name, "Four Sons & Co" and registered the trucks in his name. The accused became upset about that. He gave the following evidence: "Q. When things went south in the sense of you and he not being at one with the partnership, did you say to him, well I want you to recompense me for the rego, the registration of the trucks, the $15,000 I paid for one of the trucks and my contribution to the repairs of the trucks? A. Pretty much. Q. Mr Nguyen gave you some money toward that, is that so? A. Yep. Q. $12,000? A. Yeah. Q. As far as you're concerned, he still owes you a bit of money? A. Yes." 1. Mr Wortley was also asked: "Q. Did you know who did own the trucks, whose I mean they were in Mr Richard Nguyen's care, but were you aware that his cousin owned the trucks? A. Somewhat. There some sort of a conversation there about it, but we didn't go deep into it." 1. In re-examination, Mr Wortley denied that the accused was a friend and said that he still owes him money. It was put to him that given the detail he had given in his evidence in cross-examination, it did not make a lot of sense that he was drug affected at the time, which he denied. 2. SC Christopher Bradley gave evidence that he was working with DSC Nathan Simpson at the Urban Hotel on 18 April 2020. He gave evidence that he approached the accused's vehicle on the passenger side and spoke to the female passenger. She told him that they were going for a drive but that she didn't know where as they had not decided yet. SC Bradley confirmed that $40,000 was found in a hidden compartment near the radio console of the car and that he assisted in the accused's ERISP interview. 3. SC Bradley became aware that a statutory declaration had been made by Trang Thi Tran in respect of the accused's Local Court bail application. He attended her home on 5 May 2021 and spoke to Ms Tran in English. After he returned to his vehicle, he was approached by Ms Tran who asked that he speak to her lawyer on the phone. He then had a second conversation with Ms Tran in which he cautioned her. 4. SC Bradley gave evidence that he had seen bank records in the name of Ms TT Tran and Ex G became the NAB account summary in that name between 28 August 2015 and 5 November 2019. 5. In cross-examination, it was put to SC Bradley that there was no reference in his statement to him asking Ms Tran if she needed the benefit of an interpreter. He denied that it would have been patently clear to him that she did need an interpreter. He had made no contemporaneous notes of their conversation, but made his statement shortly after. He confirmed that Ms Tran told him that she had given some money to the accused and that she said "he deserved a second chance". 6. SC Bradley agreed that the lawyer who he spoke to on the phone told him that Ms Tran was a defence witness and asked him not to speak to her. He then spoke to DSC Simpson, following which he had another conversation with Ms Tran. 7. SC Bradley gave evidence that he was not aware that Ms Tran suffered from schizophrenia nor that she was medicated for that disorder. Nor did he agree that her English was very poor. He did agree that pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), if she was a suspect she would be classified as a vulnerable person under that legislation. 8. SC Bradley was shown NAB statements in relation to a different account number from that in Ex G. Those bank statements became Ex 1. 9. SC Bradley confirmed that the woman in the accused's motor vehicle on 18 April 2020 was not a witness in the Crown case. 10. In re-examination, SC Bradley gave evidence that he had asked Ms Tran if she required an interpreter to understand him. He clarified that she understood English and gave evidence that Ms Tran was not an accused person or a "protected suspect". He gave further evidence that he asked Ms Tran how many NAB accounts she had and she advised him that she had one. Officer in charge re-called 1. DSC Simpson was re-called and confirmed he made a statement on 29 April 2021. He understood that Vinh Hung Nguyen was also known as Mr Kevin Nguyen and that he had not been in Australia since 21 June 2019. 2. The ANZ bank records of the accused from an account ending in 4608 in the period 27 May 2019 to 14 April 2020 were tendered and became Ex H. He identified a transaction of 24 June 2019 when a sum of $3,999 was transferred into the accused's account from Vinh Hung Nguyen, followed by a $50 credit receipt the following day. 3. The OIC gave evidence that he made further enquiries about a statutory declaration provided by Ms Tran in relation to money she had provided to the accused. An inquiry was made by email from the DPP to the accused's solicitor regarding the account details of Ms Tran. He became aware of one bank account from NAB records for Ms Tran, being an account ending in 8406. He was not aware of any other bank accounts held by Ms Tran. 4. The OIC gave further evidence that he spoke at length to the accused's father, Thanh Cuoc Nguyen, by phone, but as he was unable to really understand what the OIC was saying, he did not pursue the matter any further. 5. In cross-examination, the OIC agreed he had no qualifications in psychological assessment. He was, however, experienced in making an assessment of people in his role as a police officer which he had held for over 14 years. He was aware that the accused's father had suffered a stroke. 6. The OIC was asked about a phone conversation he had with SC Bradley on 20 May 2021 in which he asked SC Bradley to speak to Ms Tran. He was aware that SC Bradley had spoken to a person who identified herself as a lawyer and who, first, advised that Ms Tran was a defence witness and was not able to speak with the police and secondly that she required an interpreter. 7. The OIC was aware that Ms Tran was cautioned by SC Bradley. He listened to the bodyworn video recording and thought her English "was fine". 8. The OIC was shown an ASIC search in respect of Prime Transport which showed Vinh Hung Nguyen as a director. It became Ex 2. He was also shown Ex F, which showed that Prime Transport Co Pty Ltd was the registered owner of the two trucks. 9. It was put to the OIC that being a diligent police officer, he should have made enquiries as to whether there was more than one account under the name of Ms TT Tran. He gave evidence that as he had already asked the accused's solicitor for details of the account, he did not think it was necessary to investigate beyond those details. 10. The OIC was asked a number of questions about the ERISP interview of the accused. He agreed that the accused stated in that interview that the funds found in his car were to be paid to Kevin Nguyen because he owned the two trucks. 11. The OIC was then asked to identify a bank transfer on 1 February 2021 in the sum of $7,000 from the bank account of the accused to Vinh Hung Nguyen. Three further transfers were identified to have taken place on 25 January 2021 in the sum of $8,700. On 4 December 2020, a payment into the accused's account of $16,000 was identified and on the same day a transfer of $15,000 was made from the accused's account to Vinh Hung Nguyen. 12. On 17 December 2020, a payment of $265 to trucksales.com.au was identified in the account records. 13. The accused's ANZ account statements from 27 November 2020 to 27 January 2021 were tendered and became Ex 3. The statements for the same account from 27 January 2021 to 26 March 2021 became Ex 4. 14. In re-examination, the OIC was asked to clarify the purpose for investigating police speaking with Ms Tran. He answered that it was to clarify information she provided in her statutory declaration. He was asked the question "did you think she was an accused in a matter?" to which he replied, "I felt like it was highly suspicious, yes. That's why I asked him to speak to her in that manner." 15. After Mr Wortley had finished his evidence, which was interposed, the OIC was asked about the statement he obtained from Mr Wortley dated 23 April 2020. He gave evidence that he took the statement over the phone, over a period of 15 to 20 minutes. He then made arrangements to meet him at his home in Belmore, where he read the statement to him. The OIC gave evidence that Mr Wortley was "fine, coherent, not under the influence or anything like that. He was normal. There was no issues." He then observed Mr Wortley read his statement and he signed it on each page. 16. The OIC confirmed that the offender, following his arrest at about 1.45am, was taken back to Newtown Police Station on 18 April 2020. His ERISP interview commenced at 5.23am and the OIC confirmed that prior to the interview, the accused had asked to phone a lawyer. The OIC gave evidence that attempts were made however no lawyer was available. He did not know whether the custody manager attempted to contact Legal Aid on behalf of the accused. 17. In further re-examination, the OIC gave evidence that the accused had been informed of his right to have a lawyer and that he did not have to have an interview without one. Notwithstanding this, he agreed to the interview and did it willingly. The case for the accused 1. The accused gave evidence that he met Mark Wortley in Wellington Correctional Centre and had known him for five years. He also met Hy Lai in Wellington gaol. He spoke to Mr Lai about two trucks that were placed in his care by his cousin, Vinh Hung Nguyen. His cousin was also known as "Kevin", and he went to Vietnam in June 2019. 2. After he left Australia, Kevin Nguyen asked the accused to move the trucks because the Council had put stickers on them. He had them towed to Marrickville. He gave evidence that upon his release from gaol, he was living with his brother at Leppington but was also caring for his father who had had a stroke in 2012. 3. The accused gave evidence that Mr Lai contacted him and asked if he could pass the accused's phone number to Mark Wortley. He then received a phone call from Mr Wortley who said he may be interested in the trucks and would like to inspect them. He met Mr Wortley where the trucks were located and Mr Wortley proposed a business idea in which they would go "halves" as business partners. The idea was sub-contracting for companies requiring deliveries. Mr Wortley said he could pay $15,000 for one of the trucks. He paid the $15,000 and the accused gave it to his father for safekeeping. It was Mark Wortley's idea to buy more trucks. 4. Mr Wortley took the trucks to a truck mechanic at Sydenham to have them repaired. Mr Wortley told the accused that it was going to cost him $6,000 to repair the trucks. After they were repaired, Mr Wortley registered the trucks under his own name, without consulting the accused. This made the accused feel "a bit annoyed" and "a little bit suspicious", but he thought he would give him the benefit of the doubt. When Mr Wortley told the accused that he was going to Gunnedah for a holiday, the accused gave evidence that he spoke to Mr Wortley and asked him to sign the trucks back into his name, because they belong to his cousin Kevin. This made Mr Wortley a bit upset, and he told the accused that he would give him back the trucks but he would like to be "paid out", in an amount of at least $12,000. The accused gave evidence that the total figure to be repaid was $20,000 but he told Mr Wortley he could pay $12,000. He then called his father, who brought the $12,000 out of the $15,000 he had given him to hold. 5. The accused gave evidence that he paid only $12,000 and not $15,000 because the trucks may have required further repairs. He gave the money to Mr Wortley and gave evidence that he still owed him $8,000. The trucks were transferred into the accused's name and he had them moved to Doody Street, Alexandria. 6. The accused gave the following evidence: "Q. What was your intention in relation to the trucks at that time? A. Well, my cousin was asking me to pay back the money for the trucks, because, like, at like, before he did he did want me to sell them, but then I and then but then when Mark Wortley when I I agreed to become business partners with Mark Wortley, I already asked my cousin at that point if he would allow me to to, like, buy the trucks off him and then to pay him back slowly. Q. And what did your cousin say about that? A. Well, he said that he said that, like, if I can handle it, but, like, he needs the money, like, quick. Q. Then what happened? A. And then after that I was meant to pay him back, but, like, I didn't yet. And then I I asked my Q. Can I just pause there? When you say, "I was meant to pay him back, but I didn't yet," did you have any money you had the $3,000; it is correct that A. Yes. Q. you didn't give Mr Wortley? A. Yes. Q. Did you have any other money? A. No. Not yet. Q. Then what happened? A. And then after that, I asked my father if he knew anyone that could lend me some money, so that I could expand on this truck business. Q. What was your intention, bearing in mind the obligation well, bearing in mind what you say your cousin had told you, what was your intention in relation to this truck business? A. Well Q. As far as it concerned your cousin? A. So I was meant to pay him back and he was pretty much, like, harassing me to, like, sell them. And then but, like, instead of doing that, like, I asked my father if he knew anyone that could help me, like, lend me some money. And he told me he yeah. And then after that, he told me that his partner, Ms Tran, might be able to help me." 1. The accused then gave evidence of a dinner with his father and Ms Tran. He explained to them the business idea that he had borrowed from Mark Wortley, "to accumulate as many trucks as possible and to get drivers and then do sub-contracting for, like, deliveries for other bigger companies." 2. The accused gave evidence that at a second dinner at Ms Tran's home a week or two later, he explained his business plan to her. She said that she could possibly help him and that she would think about it. 3. At a third dinner at Ms Tran's house, she handed $35,000 in cash to the accused. He acknowledged that $40,000 was found in his car. When asked to account for the remaining $5,000, he gave evidence that $3,000 came from the $15,000 that Mr Wortley gave him, $1,000 was given to him from his father and the remainder was saved from Centrelink payments. 4. The accused gave evidence that Ms Tran was giving him the money. It was his intention to buy two trucks and then after he reimbursed his cousin and Mark Wortley, he would also pay back Ms Tran. That was not, however, discussed at all. 5. The accused gave evidence that the money was placed in the hidden cavity inside his car which had been built by a friend. When asked why, he gave the following evidence: "Because when I first came out my friend offered to build it for cheap for like, $500 and at the time I felt that possibly if I was to ever smoke pot or something like that which I did in the past that it would be a good place to hide it because I was living with my brother at the time and my brother's like, a very straight person and he's strict and also my father wouldn't accept that as well." 1. The accused gave evidence that he had no reason to suspect the origin of the money because Ms Tran was not the type of person to be involved in any criminal activity. 2. The accused was referred to the evidence in the Crown case that his father's house was searched and plastic bags and scales were found. He gave evidence that he had had the plastic bags and scales in his possession since he was in high school, but his father did not like to throw things away. He also gave evidence about the two phones found in his vehicle, one of which was an old phone of his father's that did not work. The iPhone had been given to him by his ex-girlfriend who signed a contract for him because he was ineligible to do so. 3. He was asked why in his ERISP interview he had said that he did not want to give names and get people into trouble. When asked to explain why he had that attitude, he said that he did not want to say anything about anyone unless he was given permission to do so, especially because he had a carer's pension and he did not want it to affect his carer's payment. 4. The accused gave evidence that before the ERISP interview, he had asked on at least six occasions to speak to a lawyer but none was available. He felt very anxious during the record of interview and had been diagnosed in 2020 as suffering from a panic disorder. 5. When asked what eventually happened to the two trucks, he said that he sold one for $16,000 and transferred $15,000 to Kevin Nguyen. The second he sold for roughly $8,000 and transferred $7,000 to Kevin Nguyen. 6. In cross-examination, the accused gave evidence that he communicated with Kevin Nguyen whilst he was in Vietnam by an application known as WeChat. He had the first conversation with his cousin about the trucks in July 2019, following which he organised a tow truck to move them. He gave evidence that he had a conversation with Kevin Nguyen not long after he moved the trucks, in which Kevin Nguyen asked him to sell the trucks. At first, he wanted $40,000 for them, but he settled on accepting $30,000. 7. The accused gave evidence that he put the trucks for sale on trucksales.com.au. He also placed an ad on Gumtree. 8. The accused gave evidence that he used his ex-girlfriend's computer and bank details to register on trucksales.com.au. He gave evidence that at first the trucks were advertised for $20,000 each, but eventually the sale price decreased to $16,000 for one of the trucks and $12,000 for the other. Kevin Nguyen agreed to reduce the price to $30,000 to get rid of them. 9. When asked why he did not transfer to Kevin Nguyen the money he received from Mark Wortley, the accused said he was conflicted between buying more trucks and sending Kevin the money. He also gave evidence that he paid $6,000 to Mark Wortley for the repairs, a sum which he borrowed from his father. His father gave him that money in cash. 10. The accused gave evidence that Mark Wortley called the business "Four Sons & Co" which he thought was O.K. He had left the business registration up to Mark Wortley. He asked Mark Wortley whether there was going to be a contract, but Mr Wortley told him not to worry. 11. The accused was asked why he did not deposit the $15,000 that he received from Mr Wortley into a bank account. He gave evidence that he was concerned about losing his Centrelink money and that he did not want to put receipt of those payments at risk. He thought that giving the money to his father to keep in a shoe box was safe. 12. The accused gave evidence that he did not think his father had much money at the time, but he may have known someone who could lend him money. 13. It was put to the accused that in his ERISP interview he told police that he only contacted Kevin Nguyen through his father. He gave the following evidence: "A. Well, at the time like, he I think he was already in like, Vietnam and then I didn't want to like, just mention that and it would like just make things seem like a lot more like suspicious and whatnot and I was feeling very anxious at the time. Q. I'll just stop you there. You've told the Court today that you've spoken with your cousin ..(not transcribable).. over WeChat and that included calling and texting and that was even into April 2020, do you agree? A. Yes, April 2020, yes. Q. That's what you've told the Court today? A. Yes. Q. You told the police that you only contacted him through your father, do you agree? A. Yes. Q. Do you agree that that's not the same? A. So yeah, like I said like at the time I was extremely anxious, and I was a bit worried if I mentioned anything else about him or the fact that he's in Vietnam that, you know, things would seem even like more like murkier, so I didn't want to mention that, yep." 1. The accused was asked whether it was a lie to tell police in his ERISP interview that Kevin Nguyen lived in Sydney and he gave evidence that Kevin's address was in Sydney but he went to Vietnam for a holiday. He had not however returned. He was asked, "you would still say he lived in Sydney?" to which he replied, "well, like I said, like I didn't want to mention that he's in Vietnam and then like, make things like murkier and stuff like that. Like, I didn't mean to like, lie about it." 2. The accused gave evidence that he had looked at another truck to buy which was advertised for $22,000 but had made no arrangements to buy the truck. 3. The accused described Ms Tran as his father's partner and he knew that she had mental health issues but didn't know that she had schizophrenia. He was aware that she saw a psychiatrist and described her behaviour at times as "not normal", meaning that she was aggressive when she talks and "a bit too aggressive and in like, a normal setting". 4. The accused agreed that he didn't tell the police about Ms Tran and when asked why he didn't nominate her to police he said that he was worried that she wouldn't be too happy with it and that he wanted to make sure with her first and also seek legal advice. He gave evidence that she gave him the money the night before he was arrested and he placed it in the hidden compartment in his car. He put the extra $5,000 in the car after he went back to his father's place. 5. The accused was cross-examined about the conversations he had with his father about his business idea. He gave evidence that at the first dinner party at Ms Tran's, he told his father that he needed $40,000 in total to get more trucks to expand the business. At the second dinner at Ms Tran's house, he told her the same thing, namely that he had two trucks already and if he was to get more there would be very good profit. Ms Tran said she would think about it, and they did not discuss writing a contract. The accused denied taking advantage of Ms Tran and gave evidence that at a dinner two weeks later, she gave him $35,000. 6. The accused gave evidence that it was his intention to leave the $40,000 in his car and he felt it was more secure there than anywhere else. 7. The accused confirmed that he was on a carer's pension and was asked about significant deposits into his bank account. He was given a certificate under s 128 of the Evidence Act 1995 and was asked about a number of transactions in which he had received and transferred money. For example his receipt of funds for the trucks and subsequent transfer of funds to Kevin Nguyen. 8. He was asked about telling police that his mother had given him money and whether that was a lie. He gave evidence that he considered Ms Tran to be like a mother figure, but that he did not want to mention her name before consulting her. 9. The accused then gave the following evidence: "Q. After you had this money and it was in the hidden compartment on 18 April 2020, what were you intending to do with it? A. I was planning to like just keep it there until I found like two trucks that I could afford, but at the same time, I also had my cousin that was like harassing me to send him the money and also Mark Wortley, so I was like I was meant to like send him the money but I was very like like I really wanted to send the money to buy more trucks instead. Q. You were intending really to I withdraw that. Your first intention was to buy more trucks with this money, is that correct? A. Yes, that was what I really wanted to do. Q. But your first intention I'm sorry I didn't actually hear your answer. What was your first intention with the money was it to pay for the new trucks? A. Well, yes, I was I was meant to send the money back to my cousin and and also pay back Mark Wortley, but that that was my first preference, yes, to to buy to buy more trucks. Q. Your money was hidden in that hidden compartment until you had been able to buy some more trucks? A. Yes. Q. That was what you were intending to do with that money? A. Well, I was I was conflicted because because my cousin was was he was, like he was, like, pretty much, like, harassing me to to, like, send him the money cause because he said he needed it. Q. You didn't have any plans the next day to give him money; is that correct? A. Well, he he was he was he was sort of like harassing me but I was still I was still, like, hanging off the fence, like, with with that. Q. You were "hanging off the fence". Can you please explain to the Court what you mean there. A. Like, I was, like, very, like, conflicted because he was he was getting, like, upset, but I still I still wanted to, like, carry on, like, with that plan. Q. Was there any specific plans that you made in place for the next day to pay your cousin? A. Yes. Well, I was meant to give it to one of his friends, but I I didn't want to at the same time." 1. The accused identified Kevin Nguyen's friend's name as Michael and that he was going to give him $30,000. 2. The accused agreed that he lied to police about the hidden compartment in his vehicle but said that he was extremely anxious at the time. He conceded that he had originally intended the hidden compartment to be a hiding place for drugs but that he had not smoked any drugs since being released. He gave evidence that he had not hidden anything else in the compartment. 3. The Crown case was put to the accused as follows: "Q. Mr Nguyen, do you agree or disagree that the source of that money is not legitimate? A. I disagree. Q. And you were lying about where you got that money from? A. No, I'm not. Q. And you're doing that because the money is not legitimate. Do you agree or disagree? A. I disagree." 1. The accused was further cross-examined with leave to establish that on 18 April 2020, after the initial search of his car, the OIC asked him if there was anything in the car, to which replied "no". He agreed that that was a lie. 2. There was no re-examination. Evidence of Thanh Cuong Nguyen 1. The accused's father, Thanh Cuong Nguyen, gave evidence that he had raised the accused since he was one year old, and that he had known Ms Tran since 2015. Their relationship was one of friendship and he knew that she was divorced due to domestic and family violence. 2. Thanh Nguyen had suffered a stroke in 2012. Before Ms Tran left for Vietnam in 2016, he gave evidence that she asked him to keep the $35,000 for her. She did not want to take it with her because she was scared that she would be robbed. 3. Ms Tran returned at the end of 2016 and they remained friends. She went with him to visit the accused in gaol many times. He gave evidence that Ms Tran suffered from schizophrenia and that she had tried to commit suicide whilst in Vietnam. 4. Thanh Nguyen gave evidence that the accused received a carer's benefit for looking after him. He cleaned the house and cooked food and went to buy medicine and occasionally assisted with bathing or showering him. He gave further evidence that when his son was released from gaol, he spoke to him many times about starting some sort of trucking business. He had asked his father whether he could borrow money from him. Thanh Nguyen gave evidence that he remembered he had money from Ms Tran, and that he needed to discuss it with her. He spoke to Ms Tran, and she said that she wanted to think it over. At dinner at Ms Tran's house, she, Thanh Nguyen and Richard Nguyen discussed a possible loan. 5. Thanh Nguyen gave evidence that he made notes on his phone about the date his son was arrested, namely 18 April 2020. The notes were written in Vietnamese and a print-out of them was marked for identification. He gave evidence that he made the notes because he was forgetful. The note assisted him to remember 17 April 2020 as the date the money was handed by Ms Tran to the accused. 6. Thanh Nguyen gave evidence that when she went to Vietnam, Ms Tran had attempted suicide and when she returned to Australia in 2016 she had completely forgotten about the money. He mentioned to her that he had kept the money and that it was not lost. 7. Thanh Nguyen gave evidence that he discussed his son's business plan with Ms Tran and she said she would give it some thought. He gave evidence that a few days later, she invited him and the accused to dinner and during that dinner she agreed "to have the money lent". During that discussion he told her that if his son's business was doing well, he would be responsible for repayment of the money. 8. Thanh Nguyen gave evidence that the money was then given to the accused in a plastic bag. The money had been at his house in Newtown prior to that evening and he had taken it with him to Ms Tran's house. After dinner, the accused took the money and left. 9. In cross-examination, Thanh Nguyen was asked about the notes he made on his phone, including entries made after the accused's arrest on 18 April 2020 to establish that he wrote notes for himself because he was forgetful and the notes were to remind him what he had to do. He agreed that he had not written a note about the money and that $35,000 was a lot of money. 10. Thanh Nguyen gave evidence that Ms Tran was a friend and that they were not in a romantic relationship. He knew that she was schizophrenic and on medication. He gave further evidence that the money was given to him for safekeeping and that it was from a property settlement with Ms Tran's ex-husband. He kept it, first at his home in Punchbowl and subsequently in his home at Newtown. He gave evidence that he placed it under his bed at the bed-head and agreed that it would have been safer in a bank, but said "the money's not mine, so I'm not allowed to put into a bank". Other than that sum, he gave evidence that he also kept "my money, my savings, rent, food, money" in his bedroom. He gave evidence that the property in Newtown was a housing commission premises but he was not aware of any crime in the building. He gave further evidence that he never touched any of the money given to him by Ms Tran. 11. Thanh Nguyen gave evidence that he gave money to the accused from time to time. He confirmed that he gave him $6,000 when he was about to start the trucking business in or around March 2020. The money came from his savings, which he kept at home. He also kept in his bedroom the $15,000 cash that the accused gave him in April which was related to the trucks in Belmore. 12. Thanh Nguyen confirmed that he reminded Ms Tran about the $35,000 in 2020 when his son discussed starting up a business with him. He gave evidence that he had not said anything to her about the money in 2017, 2018 and 2019. 13. In a prolix cross-examination, Thanh Nguyen gave evidence that it was not his money and that he had to give it back to Ms Tran. He gave evidence that he gave the money back to her in 2016 when she returned from Vietnam and then confirmed that he still had the money in 2020. He then gave the following evidence: "Q. You still had the money? A. INTERPRETER: No, I already gave the money back to her. Q. So your evidence has now changed? A. INTERPRETER: No, I didn't change anything. Q. And your evidence is different than what you said earlier; do you agree or disagree? A. INTERPRETER: I couldn't tell what is different. I don't change what I already said. I gave I already gave evidence about you ask me. … INTERPRETER: And you ask me too much and my I sometimes forget everything. And you keep asking a lot of things similar. SOLICITOR ADVOCATE Q. Sir, you gave evidence earlier this morning that you gave Ms Tran you reminded Ms Tran about the money in 2020 at one of the dinners? And you still had that money? A. INTERPRETER: Well, no. I discussed with her that the money could be for my son's business. Q. And you brought that money with you in the move up from Newtown? A. INTERPRETER: When? I brought the money from Newtown when? That's right. But in 2016 I already when she returned, I already gave the money back to her. Q. You gave the money back to her in 2016? A. INTERPRETER: That's right. And that was the year when she returned. And that's why I discussed with her and asked her whether she agreed to lend my son the money. And I already said that in 2016 when she returned. I told her I still had the money and I gave it back to her." 1. It was put to Thanh Nguyen that he lied about the $35,000 being given to him by Ms Tran, which he denied. It was further put to him that he was lying to protect his son, which he denied. He gave evidence that there was no contract drafted with Ms Tran about the money and there was nothing in writing relating to the $35,000 being given to the accused. In re-examination, Mr Nguyen gave the following evidence: "Q. Mr Nguyen, when you were being asked questions by the prosecutor in relation to this $35,000 of Mrs Tran, at one stage in your evidence you said that you got the money in 2016 and kept it until 2020? A. INTERPRETER: I did say so. Q. At another stage you said that you got the money in 2016 and you gave it back in 2016. A. INTERPRETER: I did bring the money to return to her in 2016, but she did not accept. She didn't even remember that. … Q. When she came back to Australia in late 2016, what happened with that $35,000? A. INTERPRETER: I told her that I still had the money but she didn't did not know, because she was being she was in a state and I mentioned to her that I would return the money to her but she ignored it, she didn't take the money back." 1. Thanh Nguyen gave further evidence that in 2016 he had spoken to Ms Tran about returning the money to her and she said she did not know anything about the money and he had to take it back. He confirmed that he had taken the money to her home on 17 April 2020. Evidence of Trang Thi Tran 1. Ms Tran identified on Ex 1 the sum of $105,432, which was deposited into her bank account on 22 February 2016, as being money she received from divorce proceedings in the Family Court. She agreed that she had withdrawn money to repay loans of the business she had with her ex-husband. The amount left over was $35,000. She gave evidence that she intended to take that money to Vietnam but because of her schizophrenia she was unable to do so, in that she was scared that it would be stolen. She gave evidence that she left the money with Mr Thanh Nguyen because he had helped her a lot, and that she wanted to keep the money for her daughter who was then aged 12 years. She did not leave the money in the bank because her ex-husband knew all of the bank details. 2. Ms Tran gave evidence that she returned to Australia in 2016 and left the money with Thanh Nguyen because she really trusted him. 3. Ms Tran gave evidence that she went with Thanh Nguyen to visit the accused in gaol because the accused had not had a mother since he was one year old and she felt pity for him. Thanh Nguyen was her closest friend in Australia. They visited the accused in gaol often, namely every two or three weeks. She gave further evidence that on his release from gaol she gave the accused lucky money and some flowers. 4. Ms Tran gave evidence that when she returned from Vietnam, Thanh Nguyen told her that he still had her money, but she did not believe it at the time because of the medication prescribed for her in Vietnam. She told him to keep the money and continue keeping it for her. She did not take the money back because her mental condition was not stable. 5. Ms Tran gave evidence that Mr Thanh Nguyen confided in her in 2020 that the accused wanted to start up a business. Thanh Nguyen said to her that the accused wanted to buy a truck for his delivery business. After a few dinners, she said that if Thanh Nguyen still had the money, then she was willing to let the accused have the $35,000 to start his business. On the second dinner, she had said "let me think about it for a few days" and then on the third dinner, Thanh Nguyen "took the money" and she said she agreed to it. When asked what she meant by saying "he took the money", she said "he took the money and gave it to me to give it to Richard". The money was packaged in a plastic bag. There were three bundles of $10,000 and one bundle of $5,000 and she had counted the money. When asked why she counted the money, she said it was "just a reaction, a natural reaction". She gave further evidence that the money was given to the accused and Thanh Nguyen was responsible for it because the accused was too young and he had just been released from gaol and she wanted to help someone in his situation. 6. In cross-examination, she confirmed that she received money in 2016 from her divorce. 7. Ms Tran was asked why she withdrew $113,254.18 from her account and she gave evidence that she had to repay loans for her business. She was asked why she didn't keep any of the money for her future plans and answered, "because I suffer from mental condition". She gave evidence that the $35,000 was money for her daughter in Vietnam. When asked why she didn't keep the money at the bank, she said her husband knew "all the digits of my bank account and he's been…. withdrawing a lot". She was asked about the statutory declaration she made for the bail application in the Local Court for the accused. She had no lawyer and the accused's girlfriend had come to see her a few days after his arrest. She gave evidence that they talked over the phone and then she went to Bankstown to sign the document that was witnessed by a Justice of the Peace. In the document, she declared that she "lent Richard Nguyen AUD $35,000 at my house to invest in his plan to start a truck delivery company. This money, AUD $35,000 was my savings money from 2016". 8. Ms Tran gave evidence that she gave the money to the accused's father because she trusted him and she was not worried about the money. He told her that he kept the money "at his pillow". 9. Ms Tran was asked about her diagnosis of schizophrenia and said she had been violently beaten and "got some trauma on my brain". She gave evidence that in 2016 she had attempted suicide and had to go to a mental hospital and was placed on medication. She continued to be on medication. 10. Ms Tran gave evidence that she remembered giving the accused $35,000 which Thanh Nguyen brought to her when he came for dinner. She did not remember exactly the conversation that she had about the $35,000 with Thanh Nguyen. She confirmed there was nothing in writing about the lending of the $35,000 except for the statutory declaration. She gave evidence that she understood that the business the accused was going to put the money towards was buying a truck for delivery of goods. She didn't ask for any other details. 11. In further cross-examination, Ms Tran was asked about a photo she took of the day the accused was released from gaol when she gave him some flowers and some lucky money. She gave evidence that she took the photo as a souvenir, a memento. She confirmed that she didn't take photos of giving the accused $35,000 or of giving $35,000 to Thanh Nguyen in 2016. When asked why, she answered: "Because I didn't want to take a photo to prove the sincerity of the person – ethics of the person." When asked to explain that answer, she said: "It's because if I gave someone money and I had to take a photo, it means that I had no more trust in the person." 1. Ms Tran gave evidence that her plan was to get the money back when her daughter turned 18. However she did tell Thanh Nguyen that when her daughter grows up "or if I commit suicide then give the money to my daughter and I trust him on that". 2. Ms Tran gave evidence that she did not trust her mother with the money, but she had no choice but to leave her daughter with her mother in Vietnam because of the domestic violence she was subjected to in Australia. 3. In relation to the evidence she had given about her ex-husband deducting money from her account, she gave evidence that that occurred between 2009 and 2015. 4. Ms Tran gave evidence that she found out that Richard had been arrested after his arrest on 18 April 2020 when Thanh Nguyen phoned her to tell her. She was asked why she didn't help him on the date that he was arrested and gave this evidence: "Yeah, because I couldn't – I didn't – not understand Richard was on parole and he went out during the COVID lockdown, yeah, and he went out with the money and he didn't do anything wrong." 1. She gave evidence that she would not have been upset if Richard had told police that she had given him the money. 2. Ms Tran gave evidence that she loved the accused "like my child". She gave evidence that she wanted to protect him but only because he did not commit any crime and she denied that she was lying to protect the accused. 3. The Crown case was put to Ms Tran that she did not give the accused $35,000 in April 2020 with which she disagreed. It was put to her that she did not give $35,000 to Thanh Nguyen in 2016 and she also disagreed. 4. There was no re-examination. The Crown address 1. The Crown submitted that the $40,000 found in the hidden compartment in the accused's car was property in respect of which there were reasonable grounds to suspect it was the proceeds of crime. The Crown relied on s 193C(3)(e) of the Crimes Act 1900 to submit that there were reasonable grounds to suspect that the money was proceeds of crime where the value of the property involved was grossly out of proportion to the accused's income and expenditure over a reasonable period within which the dealing occurred. The fact that the $40,000 in cash was secreted in a hidden compartment at 1.45am would cause the court to conclude that there were reasonable grounds to suspect it is the proceeds of crime. 2. The Crown outlined the evidence of the OIC and SC Bradley as to the circumstances in which the money was discovered. It submitted there were five circumstances that the court should consider: 1. The accused was out late at night without a particular destination in mind that he is willing to share with police; 2. He was out a long distance from the place he resided; 3. He had a substantial amount of cash in his car at that time at night, for which no legitimate banking or business could be taking place; 4. He had three mobile phones in his possession, two on his person and one in the car in the centre console; 5. The hidden compartment is not something one ordinarily uses and there was a clear inference to be drawn that it was being used to hide items. 1. The Crown submitted that those matters would be considered against a background of the accused's bank records in Ex H which showed a modest income from Centrelink at around the time of the alleged offence. The sum of $40,000 was grossly out of proportion to the accused's income and savings and the Crown had proved the essential elements of the offence beyond reasonable doubt. 2. The Crown made submissions in relation to the evidence given by Mark Wortley, the accused, Thanh Cuong Nguyen and Trang Thi Tran. It was submitted that Mr Wortley was a difficult witness who gave consistent evidence that the accused still owed him money. 3. The Crown submitted that the court would reject the evidence of the witnesses called in the accused's case as being illogical, unbelievable and inconsistent. 4. The Crown submitted the court would take into account the following nine matters: 1. There was no physical documentation in relation to the accused ever being given the money. 2. The accused was evasive when speaking to police in his bodyworn video and ERISP. 3. The accused lied to police about anything being in the car. He did that because he was scared that police would find the hidden compartment with the money. This was a deliberate lie which the Crown relied on as being evidence of consciousness of guilt. 4. The Crown submitted there were inconsistencies in relation to the origin of the money, given the answers given by the accused in the bodyworn video and in his ERISP interview. The Crown submitted the accused kept changing his story because he wasn't telling the truth and there was no believable, plausible explanation offered by him, because the truth is that the money wasn't obtained legitimately nor was it for a legitimate purpose. 5. The Crown submitted the hidden compartment was a significant feature of the Crown case for three reasons. First, it was a highly unusual modification for a car. Secondly, the money was located in that area and thirdly the accused lied about his knowledge as to the manufacture of the hidden compartment. 6. The Crown submitted there was a significant inconsistency in the accused's explanation for what he intended to do with the money, namely whether he was going to pay for the truck and who he was going to pay the money to. The accused's explanation was riddled with inconsistencies. 7. The Crown submitted the accused gave inconsistent evidence about his cousin Kevin who had not been in the country since 25 June 2019. 8. The Crown asked rhetorically why the accused did not place the money in the bank. When that was put to the accused in cross-examination, the Crown submitted his explanation about being worried about his girlfriend was implausible and that he didn't put it in a bank because he was concerned that it would arouse suspicion given the sum and that it was inconsistent with the remainder of his finances. 9. The Crown submitted there was no evidence corroborating the advertisement of the trucks for sale. The Crown submitted it was not believable that such materials would not be readily available if the accused was being honest and he had legitimately placed advertisements on the various websites nominated. 1. The Crown submitted that the court would find the accused was not a credible witness and reject his version. The Crown further submitted that the accused's father Thanh Nguyen was lying to protect his son and that the court would also reject his version. 2. The Crown submitted that the court would reject the evidence of Ms Tran because her evidence was illogical and unbelievable. The Crown submitted that I would be satisfied that the Crown had established each element of the offence beyond reasonable doubt and find the accused guilty of the count on the Indictment. The accused's address 1. Counsel for the accused confirmed that the defence relies upon s 193C(4) of the Crimes Act 1900. It was not in dispute that the accused was dealing with property and it was not in dispute that there were reasonable grounds to suspect that the property was proceeds of crime pursuant to s 193C(3)(e), namely that the amount of the property was grossly out of proportion to the accused's income and expenditure over a reasonable period within which the dealing occurred. 2. Counsel submitted that it was true the accused was fairly unimpressive in the way he conducted himself at the scene and later on at the police station during his ERISP interview. At the scene, he had disavowed knowing anything about the hidden compartment in his car or the person who created it. It was submitted that in his ERISP interview it was obvious that he suffered from some sort of anxiety disorder and that he was labouring with a stutter. However, during the record of interview he did present material that was later on corroborated and fleshed out. That concerned his statements to police about the trucking business and monies being owed to Kevin. It was submitted the core of the defence case was Ms Tran. 3. It was submitted that the evidence established that Ms Tran and Thanh Nguyen were very close and she had the upmost trust in Thanh Nguyen. She also clearly cared deeply for the accused, saying that she loved him as a mother. 4. It was submitted that the handing over of $35,000 by Ms Tran to Thanh Nguyen for safekeeping had to be viewed through the prism of an appreciation of "who these people present themselves to be". They were not sophisticated people, but people who clearly cared for one another. The evidence clearly established that she had access to a large sum of money following divorce proceedings in 2016. It was also clear that Mr Thanh Nguyen had supported her before she left for Vietnam to seek out help with her mental health issues. Counsel submitted that it made sense that she would leave the funds with someone she relied upon and trusted. Counsel further submitted that Ms Tran made it plain in her evidence that she did not believe the accused owed her the $35,000 that she had given him, but rather that Thanh Nguyen owed her that money, which she had made plain to him was for her daughter. 5. It was submitted that the evidence she gave about giving the $35,000 to Richard Nguyen was not implausible or illogical. Nor was the money given without any expectation of it being repaid. Counsel submitted: "That's not the evidence. The evidence is to the contrary. The evidence is I wanted to help Richard out, which is consistent with the statutory declaration. I loved him like a son and Mr Thanh Cuong Nguyen had shown him worthy of my respect basically by keeping that money whilst I was struggling to stabilise my mental health. It makes sense, in that context, that she would lend money to Thanh Cuong Nguyen, actually. That's how the evidence falls in my submission, and he gave it to his son." 1. Counsel submitted that the business plan of the accused was obviously the idea of Mark Wortley. Counsel outlined the evidence as to their interactions and submitted that there was a clear explanation for the accused's reluctance to be forthcoming and hesitant about telling police about Mr Wortley. 2. It was submitted that having adopted Mr Wortley's plan, it explained the reason why Thanh Nguyen approached Ms Tran and why the money was given to the accused. 3. Counsel submitted that the evidence given by the accused about the hidden compartment, in all of the circumstances, made sense. 4. It was submitted that the court would be satisfied that the accused had no reasonable grounds for suspecting that the property was substantially derived from illegal activity. The evidence as to the registration of the trucks was cushioned by Mr Wortley's evidence and notwithstanding that the accused's plan to "go it alone" was "a bit hair-brained", both his father and Ms Tran had faith in it. Counsel submitted that of the $40,000 located in the accused's vehicle, $35,000 came from Ms Tran. The fact that she counted the money when it was given to her corroborated her version of events. The remaining $5,000 was also explained by the $3,000 left over from Mr Wortley and monies received from his father. Notwithstanding that suspicion attaches to the accused's conduct, when all of the evidence before the court was examined, the court would have doubt as to the guilt of the accused. Directions of law 1. The Crown bears the onus of proving each of the elements of the offence beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. I am mindful that speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference. 2. The accused has the presumption of innocence in his favour, i.e., he is presumed to be innocent unless and until the Crown has proven the offence beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. It is only when I come to consider the defence relied on by the accused pursuant to s 193C(4) of the Crimes Act 1900. I wish to emphasise that the law is that where the proof of any matter is on an accused person such as by way of a statutory defence, then the accused is not required to prove that matter beyond reasonable doubt – the standard of proof imposed upon the Crown. 3. The accused needs only to establish what the accused relies upon, in this regard, to a lower standard of proof than beyond reasonable doubt. The accused is required to prove the accused's case in this regard only, only on the balance of probabilities. That is to say that the accused needs only to show that it is more likely than not that what the accused asserts is so. 4. I give myself the following directions: 1. Lies Used as Evidence of Consciousness of Guilt Direction: The next direction I must give myself concerns the evidence relied on by the Crown of DSC Nathan Simpson on 18 April 2020: 1. When he asked the accused if "there was anything in his car", the accused replied that there wasn't. The Crown says that the accused lied because $40,000 in Australian currency was subsequently found in a hidden compartment in the accused's car. 2. When asked why the money was in the compartment, the accused replied that "I bought the vehicle, I bought this car like that, yeah I didn't know." The Crown says the accused lied because the accused paid $500 for the compartment to be built. First, I must be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue. If I find that the accused made the statements I have just referred to, and I find either or both was a lie, then I must give myself a direction about the care with which I must approach the task of deciding what significance, if any, it has. I may take this lie into account as evidence of the accused's guilt but I can only do that if I find two further things which I will refer to shortly. When I say I can take it into account as evidence of the accused's guilt, I am not suggesting that it could prove his guilt on its own. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found the accused told a lie that this finding can prove the guilt of the accused by itself. Apart from the fact that the accused made the statement and that it amounted to a deliberate lie, before I can use the lie as some evidence of the accused's guilt I must find two further matters proved. First, I must find that what the accused said that amounts to a lie relates to an issue that is relevant to the offence the Crown alleges that the accused committed. It must relate to some significant circumstances or events connected with the alleged offences. The Crown says it is relevant because it amounts to a complete denial that the offences took place. Secondly, I must find that the reason the accused told this lie was because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offence for which he is now on trial. I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling lies, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his or her guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence. If I think that the lies may have been told for some reason other than to avoid being implicated in the commission of the offence for which the accused is now on trial, then it cannot be used as evidence of the accused's guilt. If that is the case, I should put them to one side and focus my deliberations upon the other evidence in the case. Let me summarise what I have just said. Before I can use what the accused said on 18 April 2020 after the alleged offence as something which points towards his guilt, I must be satisfied that he lied deliberately. I must find that the lies related to some significant circumstances or events connected with the alleged offence. I must find that the reason the accused lied was because he feared that the truth would implicate him in relation to the commission of the offence for which he is now on trial. 1. Zoneff Direction as to Lies by the Accused: I have heard it suggested that the accused lied in his interview with the police. Whether the accused did in fact lie is a matter for me to decide. To decide that a lie was (or lies were) told, I must be satisfied that the accused said something that was untrue and that at the time of making the statement, he knew that it was untrue. Saying something that is untrue by mistake, or out of confusion or forgetfulness, is not a lie. If I decide that a lie was (or lies were) told, I cannot use that fact in support of a conclusion that the accused is guilty. A lie cannot prove the accused's guilt and nor can a lie be used in conjunction with the other evidence that the Crown relies upon to prove the accused's guilt. The only use I can make of the fact that the accused told a lie (or lies) is in my assessment of his credibility. If I am satisfied that he did lie, then that may be considered by me as having a bearing upon whether I believe the other things that he has said. 1. Liberato Direction: The accused relies on an account of events in the evidence he gave. That account is to the effect that the $40,000 in his possession was not the proceeds of crime. It is important I understand that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations. It follows from this: First, if I believe the accused's evidence, obviously I must acquit. Second, if I have some difficulty accepting the accused's evidence, but think it might be true, then I must acquit. Third, if I do not believe the accused's evidence, then I should put it to one side. Nevertheless, the question will remain; has the Crown, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt? As I have previously stated, the onus remains on the Crown to establish beyond reasonable doubt the charge which it brings against the accused, and there is no onus on the accused to prove that he is not guilty. 1. Direction pursuant to s 165(1)(c) of the Evidence Act 1995: I give myself a warning in relation to the evidence of Thanh Cuong Nguyen pursuant to s 165(1)(c) of the Evidence Act 1995. This is on the basis that his evidence is of a kind that may be unreliable because of his ill health, and in particular his brain damage. His evidence was that since he suffered a stroke in 2012 that this has impacted his memory. I warn myself that the evidence of Thanh Cuong Nguyen is of a kind that may be unreliable due to his ill health, mental and physical condition. I am to consider that he gave evidence that he was ill and quite forgetful. He suffered from a stroke and it still impacts his memory to this day. I am therefore mindful of the need for caution in determining whether to accept the evidence of Thanh Cuong Nguyen and the weight to be given to it. Assessment of witnesses generally 1. My function as a tribunal of fact involves deciding what evidence I accept as proved and what is not, and that involves making an assessment of the witnesses. I remind myself that in making that assessment of whether I accept evidence as established by a particular witness' account, I need to bear in mind that I am concerned with not just the honesty of the witness, but the reliability of the witness. Quite apart from questions of truthfulness, I bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation or errors in the witness' recall of events or a witness' inability to accurately describe what it is he or she saw or heard. 2. In making an assessment of the evidence of witnesses, I also bear in mind that I do not have to accept everything that a witness said or reject everything that a witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said, however, it is equally open to me to accept part of the evidence and reject other parts of that witness' evidence. In making that assessment I am not obliged to confine myself to looking at the evidence of a given witness in isolation. I am entitled to weigh all of the evidence together in arriving at the factual determinations I make. 3. Before proceeding to outline my findings of fact, I record the following impressions of the various witnesses which impacted on their evidence and which I have taken into account in my factual findings. 4. First, the accused Richard Nguyen in his first interactions with the police on 18 April 2020 as depicted in the bodyworn video (Ex C) and his ERISP interview was an anxious young person with a stutter. In the bodyworn video he, on at least two occasions, told police that he felt faint and had to sit down. Following his arrest in 2020 he had been diagnosed with a panic disorder and this translated into the manner in which he gave his evidence in the witness box. I have therefore made due allowance for this in assessing his evidence overall. 5. Mr Thanh Nguyen, the accused's father, had suffered a stroke prior to the events in question and required care which was being provided by the accused who was entitled to a carer's pension prior to his arrest. Whilst he gave his evidence with the benefit of an interpreter, he did so somewhat volubly at times, and clearly was unable to remember things at times. It was for that reason that he made notes for himself on his mobile phone. I have also made due allowance for those matters in assessing his evidence. 6. Ms Trang Thi Tran had been diagnosed in 2016 as being schizophrenic and had been medicated for that condition, at first in Vietnam and subsequently upon her return to Australia. She gave evidence that she had been, since 2016, under the treatment of a psychiatrist, a psychologist and a social worker and that her mental health issues were ongoing. I have also made due allowance for that in assessing her evidence, particularly as she was subjected to a rather prolix cross-examination. 7. Mr Mark Wortley, who was called in the Crown case, gave his evidence in a truculent and at times aggressive fashion. He clearly had an animus towards the accused, who he alleged still owed him money as a result of their dealings with the trucks the subject of the evidence. Factual findings 1. Unless otherwise stated, the following are my factual findings based on the whole of the evidence. 1. On 18 April 2020, investigating police, after a conversation with the accused on Station Street, Newtown, conducted a search of his motor vehicle. When asked by the OIC whether there was anything in his car, the accused replied that there wasn't. The OIC subsequently conducted a further search which revealed $40,000 in cash hidden in a compartment behind the car radio. Police also located on the accused two mobile phones together with a further mobile phone in the centre console of the motor vehicle. 2. A subsequent search of the premises of the accused's father, Thanh Nguyen, at Station Street, Newtown, executed pursuant to a search warrant, located a number of plastic bags, scales and a phone. 3. Following his arrest at 1.45am, the accused was taken to the Newtown Police Station where in the early hours of the morning he underwent an ERISP interview between 5.23am and 6.26am. The accused had on a number of occasions requested a lawyer but none was provided. He did, however, participate willingly in the interview in which he told the police, inter alia, that the $40,000 located in a hidden compartment in his car was not illegally obtained and that it was intended to pay for some trucks located in Alexandria which were in his name but unpaid for. He told the police that he had had the trucks in his care for "maybe seven months" and that he had an ex-truck business partner whose name he had forgotten. He denied creating the hidden compartment in his car, which was untrue, and he could not remember the passcodes for two of the three phones police had found. When police suggested to him that the money that he was in possession of was proceeds of crime or was going to be used for the proceeds of crime, the accused answered "I say that's not true at all". He told police that he was going to pay for the trucks "tomorrow" and when asked when he put the money in the hidden compartment he told them that it was "yesterday", that is, Friday 17 April 2020. 4. I find that in the middle of 2016, Ms Trang Thi Tran gave $35,000 in cash from money she had received as a divorce settlement to Mr Thanh Nguyen for safekeeping before she left for Vietnam. 5. I find that Ms Trang Thi Tran returned from Vietnam in late 2016 and that she had been diagnosed with schizophrenia and was medicated. She continued to suffer mental health issues thereafter and was under the care of a psychiatrist, a psychologist and a social worker. 6. I find that Mr Thanh Nguyen gave substantially truthful evidence about the money he held in safekeeping for Ms Tran. He offered to return it to her upon her return to Australia in 2016, however, she had forgotten about it and left it with him because she trusted him. 7. I find that the accused sometime in 2019 had been asked by his cousin Kevin Nguyen to move two unregistered trucks belonging to him as they had been applied with Council stickers requiring their removal. I find that the accused arranged for the trucks to be towed to a location in Marrickville. 8. I find that the accused was contacted by a third person in early 2020 and asked whether that person could put Mark Wortley in touch with him about the two unregistered trucks. 9. I find that the accused and Mark Wortley reached a verbal agreement to purchase the trucks and that each would contribute $15,000 plus the cost of repairs to fix the trucks and register them. I find that it was Mark Wortley's plan that they operate a trucking business in partnership, whereby they would deliver goods on a subcontract basis in the Metropolitan area and expand the business by purchasing more trucks. 10. I find that Mark Wortley paid the sum of $15,000 in cash to the accused for the purpose of purchasing one of the trucks from the accused's cousin Kevin Nguyen. 11. I find that the trucks were repaired and registered and that $6,000 was paid by the accused as his share of the repairs, a sum that he borrowed from his father Thanh Nguyen. 12. I find that both trucks were registered in Mark Wortley's name. Subsequent to that, the agreement was terminated and Mark Wortley asked for his money to be returned. 13. I find that the accused paid Mark Wortley a sum of $12,000 in cash, leaving a sum of $8,000 outstanding as they had agreed that he was owed $20,000. 14. I find that the $12,000 in cash was delivered to the accused by his father, who had held the money on behalf of the accused. The accused then paid it to Mark Wortley. 15. I find that the accused did not pay any money to Kevin Nguyen prior to his arrest but he did so subsequently when the trucks were eventually sold. 16. I find that in early 2020 and prior to 2 April 2020, when the trucks were registered in the accused's name, he discussed with his father the business plan which he had taken from Mark Wortley, namely to operate a delivery business with the trucks and to expand that business by buying further trucks. 17. I find that Thanh Nguyen discussed the accused's business plan with Ms Tran and asked her to give the $35,000 that he was holding on her behalf to the accused. I find that Ms Tran told Thanh Nguyen that she wanted to think it over and that subsequently he brought the money to her place in plastic bag. Following dinner with Thanh Nguyen and the accused, Ms Tran told the accused that she would give the money to him to pursue his business plan. 18. I find that she gave the money to the accused on 17 April 2020. He then secreted it in the hidden compartment of his car, and added to it $5,000 which comprised the balance of $3,000 Mark Wortley had given him together with $1,000 of his father's money and $1,000 in Centrelink payments. Determination 1. Having regard to the concessions made by counsel for the accused that it was not in dispute that the accused was dealing with property and that at the time of his arrest there were reasonable grounds to suspect that the property was proceeds of crime pursuant to s 193C(3)(e) of the Crimes Act 1900, the sole issue is whether the statutory defence pursuant to s 193C(4) has been made out. 2. I do not accept the Crown's submission that I would reject the evidence of the accused, Thanh Cuong Nguyen or Trang Thi Tran as being illogical, unbelievable and inconsistent. 3. There were inconsistencies in the accused's evidence and in both the bodyworn video and ERISP interview. He lied to police when he told them there was nothing in the vehicle and also when he told police that he purchased the vehicle with the compartment already built in. The accused was otherwise evasive when speaking to police and in his ERISP interview gave a version which, on its face, was inconsistent. He was, however, steadfast in telling police that the money was not obtained illegally. 4. I have had regard to the evidence of the accused against a background that he was at the time on parole, that his business arrangements with Mr Wortley had arisen from a background in which they met each other whilst in gaol and became friendly until they had a falling out and that whilst the trucks at the time of his arrest were registered in his name, they were really the property of Kevin Nguyen until he had paid the purchase price to his cousin. 5. I accept the accused's explanation that he did not want to name the people who were involved unless he had their permission to do so. I also accept that he had requested police to contact a lawyer on his behalf and that had not occurred. Rather, police proceeded to interview the accused in the early hours of the morning. 6. I also accept the accused's evidence that he was "conflicted" because he knew the money was for the purchase of the trucks from his cousin, however, he wished to pursue the business plan that had come from Mark Wortley. That conundrum for the accused was the source of much of the inconsistency, both in his ERISP interview and his evidence. 7. No great significance can be placed on the absence of a written contract or documentation of the dealings between the accused and Mark Wortley. The fact that the trucks were registered, first in the name of Mark Wortley, and thereafter in the name of the accused, corroborates the accused's evidence. 8. Similarly, the absence of any written agreement between Ms Tran and Thanh Nguyen as to his safekeeping of the sum of $35,000 on her behalf in 2016, and subsequently her decision to give that money to the accused, is of no great significance. Clearly, Ms Tran trusted Thanh Nguyen and he fulfilled that trust by keeping the money safely for her. It is of no significance that the money was not placed in the bank, either in 2016 or by the accused when he received it in 2020, despite the fact that he had no real opportunity to do so. The fact is that not all in the community believe in placing money in a bank and in any event they may have good reason not to do so. 9. The fact that there was no evidence corroborating the advertisement of the trucks for sale is also of little significance. In fact, the trucks were sold and the proceeds of sale were substantially forwarded to Kevin Nguyen by the accused by way of bank transfer. 10. I do not accept the Crown's submission that the accused's father Thanh Nguyen was lying to protect his son and that the court would reject his evidence. Rather, I am satisfied that, given he was labouring under the effect of having suffered a stroke, he was doing his best to assist the court by giving truthful evidence. He did so in a somewhat voluble manner, however notwithstanding an extensive cross-examination, his credit was not successfully impugned. 11. I also reject the Crown submission that the court would reject the evidence of Ms Tran because it was illogical and unbelievable. Again, I have viewed her evidence against a background of her schizophrenia for which she was medicated, and the history she gave of the breakdown of her marriage, resulting in her receiving a property settlement in 2016. I am comfortably satisfied that the sum of $35,000 came from that property settlement, and was given by Ms Tran to Thanh Nguyen in mid-2016, before Ms Tran travelled to Vietnam. I am also comfortably satisfied that that money remained with Thanh Nguyen until he returned it to Ms Tran on 17 April 2020, following which she gave it to the accused. 12. Notwithstanding the inconsistencies in the accused's evidence, I am satisfied on the balance of probabilities, that on 18 April 2020, the accused had no reasonable grounds for suspecting that the property hidden in his vehicle, namely $40,000, was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against any law. I am therefore satisfied that the statutory defence, pursuant to s 193C(4) of the Crimes Act 1900 has been made out. 13. There will therefore be a verdict of not guilty to the charge on the Indictment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2021