New South Wales Supreme Court CITATION : NSW Crime Commission v Trinh [2003] NSWSC 811 HEARING DATE(S) : 22/05/2002 JUDGMENT DATE : 5 September 2003 JUDGMENT OF : Hidden J at 1 DECISION : See pars 19-21 CATCHWORDS : Confiscation of criminal assets: proceeds assessment order. LEGISLATION CITED : Criminal Assets Recovery Act 1990 CASES CITED : National Australia Bank v Rusu (1999) 47 NSWLR 309 PARTIES : NSW Crime Commission - Applicant Huu Trinh - Respondent FILE NUMBER(S) : SC 10363/01 COUNSEL : Mr I Temby QC - Applicant Mr P Lowe - Respondent SOLICITORS : JM Giorgiutti - Applicant Bradfield Anderson - Respondent IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Friday, 5 September, 2003 10363/01 - NEW SOUTH WALES CRIME COMMISSION v Huu TRINH JUDGMENT 1 HIS HONOUR: On 22 September 1999 the respondent to this application, Huu Trinh, was convicted in the District Court of supplying heroin. The applicant, the New South Wales Crime Commission, has since invoked a number of the procedures under the Criminal Assets Recovery Act 1990. On 8 February 2001 the Commission applied to this Court for a proceeds assessment order, pursuant to s27 of the Act. On 22 April 2002 Dowd J made an order under that section in an amount to be assessed. The matter is before me for the purpose of that assessment. 2 Section 27(1) requires the assessment of "the value of the proceeds derived" from the illegal activities of the respondent "that took place not more than six years before the making of the application for the order …". In the present case the relevant period is 8 February 1995 to 8 February 2001, when the Commission's application was filed. The task of assessment is guided by s28(3), the effect of which is to cast the onus upon the respondent to prove that the source of any expenditure during that period was not related to any illegal activity. 3 The Commission relies upon an affidavit of Richard Laurence Oades, one of its senior financial investigators. Mr Oades prepared an analysis of the respondent's expenditure over the relevant period, together with sources of funds which the Commission accepts to be untainted by illegal activity. A helpful summary of that analysis is provided in a schedule annexed to his affidavit. In evidence before me is a large volume of documentary material which Mr Oades examined for the purpose of preparing his analysis. It includes financial records of the dealings of the respondent and of his girlfriend, Kim Eng Lo, together with transcripts of evidence which they gave in the course of their examination under s12 of the Act. Where precise figures were not available Mr Oades made estimates, based on material set out in the affidavit. In the result, Mr Oades found that the respondent's expenditure exceeded his known legitimate sources of funds by at least $442,990. 4 Mr Oades gave oral evidence, and from his cross-examination it is apparent that much of his analysis is not in dispute. There are only three areas of contention. The respondent did not adduce any evidence, his counsel relying upon a number of the answers he gave in the s12 examination. 5 During the examination the respondent claimed that in 1999 he had rendered some assistance to the National Crime Authority, for which he was paid. He said that he dealt with one Nick Bingham at the Authority. He did not say how much he had been paid. Mr Oades made no reference to this matter in his affidavit. However, asked about it in cross-examination, he said that he had made an inquiry of Mr Bingham and had been told that no such payments were made. 6 What I am to make of this evidence is not at all clear. Counsel for the respondent complained that the matter had not been canvassed in Mr Oades' affidavit and the Commission had not made Mr Bingham available for cross-examination. However, in the light of s28(3) of the Act, this is clearly a matter about which the respondent bears the burden of proof. He has given no evidence, and no reason has been advanced why it would not have been open to him to have adduced evidence from Mr Bingham. I am left with the respondent's assertion, untested before me, that he received from the National Crime Authority an amount of money which he has not attempted to quantify. I am far from satisfied that any such payment was made. 7 The other two areas of contention relate to the respondent's expenditure, a matter as to which the Commission bears the burden of proof. 8 The documentary evidence discloses that in April 1999 the respondent and his wife, The Chau Trinh, obtained a secured loan from a bank for $167,000. From that sum, $84,600 (in round figures) was paid to Chau and Associates, a firm of solicitors of which Mr Michael Chau is the principal. 9 In October 1996 the respondent entered into a hire purchase agreement for a Mercedes Benz sedan with Esanda Limited. The agreement was over four years, with monthly repayments of $801.30. A ledger from Esanda records payments in that amount being made between October 1996 and February 2000. Records of two bank accounts held by Chau and Associates disclose eight cheque withdrawals of $801.30 between June 1999 and February 2000, each of them on a date corresponding with one of the payments recorded on the Esanda ledger. 10 It is the Commission's case that the sum of $84,000 odd paid to Chau and Associates was held by that firm as agent for the respondent (and, presumably, his wife). I should infer, says the Commission, that the eight withdrawals of $801.30 from the Chau accounts were for payments on the hire purchase agreement in respect of the motor vehicle and, accordingly, should be seen as expenditure of the respondent. Mr Oades said in cross-examination that he spoke to Mr Michael Chau about the matter, but he was not asked to recount the conversation. He made no reference to any such conversation in his affidavit. 11 Counsel for the respondent relied upon his client's assertion in the examination that he remembered a car like the one the subject of the hire purchase agreement, but he had sold it "quickly" (although he could not recall to whom). Counsel complained that Mr Chau, like Mr Bingham, had not been made available by the Commission for cross-examination and submitted that, in the absence of evidence from Mr Chau, I should not draw the inference for which the Commission contends. 12 It is true that, without any evidence from Mr Chau about the purpose of the eight payments referred to, the evidence about this matter is not entirely satisfactory. On the other hand, it was open to the respondent to have adduced evidence from Mr Chau. (In so saying, I am mindful that this is not an issue upon which the respondent bears the burden of proof.) That said, from the evidence which I do have the conclusion is readily available that the payments from the Chau accounts were made on the respondent's behalf in discharge of his obligation under the hire purchase agreement. I am so satisfied. 13 This brings me to the third, and most important, area of contention: the respondent's gambling. This relates primarily to what appears to have been extensive gambling activity at the Crown Casino in Melbourne between 1997 and 1999 and the Star City Casino in Sydney between 1997 and 2000. In addition, the Commission relies upon evidence of the payment of a deposit of $10,000 at the Treasury Casino in Brisbane in August 1999. From records of the respondent's wins and losses at the Crown Casino and Star City Casino, Mr Oades calculated that he had sustained substantial losses during the relevant period, which are shown as expenditure in the schedule to his affidavit. 14 Counsel for the respondent objected to the casino records, relying upon the decision of Bryson J in National Australia Bank v Rusu (1999) 47 NSWLR 309. The argument centred upon the records of the Sydney and Melbourne casinos, but I take it that the objection embraced the single page record from the casino in Brisbane. However, it became apparent in argument that the objection was misconceived. Counsel's concern was with the accuracy of the records as a reflection of the respondent's expenditure rather than their authenticity as records of the casinos concerned, which he conceded. It was the authentication of business records, that is, the need to prove that documents tendered in evidence are the records which they purport to be, with which National Australia Bank v Rusu was concerned. The casino records in the present case are admissible. 15 In evidence in the examination, the respondent said that the $10,000 deposit paid at the Treasury Casino was not all his money. Some of it was the money of others who had accompanied him to the casino. Apart from one person whom he named as Chu Mu, he was unable to say who these other people were. Nor did he say how much of the deposit was his own money. 16 The respondent had accounts at both the Crown Casino and Star City Casino, for each of which he was issued with a patron card. As I understand it, it was from the use of those cards that records of his wins and losses at both casinos were compiled. His evidence at the examination was that he regularly took people to each casino and allowed them to use his card, so that not all of the losses recorded were in fact his. Indeed, he said that the level of his gambling at Star City was "very small." In addition, he claimed that some supervisors at Star City had inflated the figures attributable to his card so that he could obtain benefits afforded by the casino to patrons whose gambling was substantial. He said that this practice led to a number of supervisors being dismissed. He did not say to what extent his figures had been inflated. 17 The respondent did not identify any of the persons said to have used his card at Star City or the Crown Casino, although it must be said that he was not asked to. Nor did he provide even an estimate of the amount of his recorded losses which should be attributed to others. On occasions the Crown Casino records disclose that he travelled there in the company of named persons, but whether any of those people used his card he did not say. Mr Oades could not recall having spoken to any of them. He did not make enquiries of either casino about the possible use of the respondent's card by others, nor of the Treasury Casino about the circumstances of the $10,000 deposit. He made no enquiry of Star City about the dismissal of supervisors. 18 In short, the respondent's case is that the records of all three casinos do not reflect his true expenditure. Yet again, I have no more than the respondent's assertion to that effect, untested before me, without any attempt to arrive at what he claims to be the correct figure. Yet again, relying upon the fact that the Commission bears the burden of proof on this issue, he has been content to complain that Mr Oades did not make enquiries about matters of which he himself might have adduced evidence. 19 That said, I do not find it improbable that he allowed others to use his patron cards from time to time. To what extent he did is impossible to say, and it is not apparent to me how any enquiries of the casinos could elicit that information. Equally, it may be that some of the deposit paid to the Treasury Casino was on behalf of people accompanying him. Senior counsel for the Commission acknowledged that I might make some allowance for these possibilities, perhaps even to the extent of halving the gambling figure. While I suspect that it is unduly favourable to the respondent, I propose to take that course. This would also embrace the possibility, which I am not prepared to rule out, that his figures at Star City were corruptly inflated by casino staff. I would allow half the amount claimed by the Commission as expenditure referable to the respondent's gambling. 20 Allied to the respondent's gambling expenses is the cost of his air travel between Sydney and Melbourne for the purpose of attending the Crown Casino. Records of the casino and the relevant airline disclose that on occasions the casino met the cost of those flights. Mr Oades has made allowances for most of those occasions in his figures. However, after an examination of the casino records during his oral evidence, counsel for the Commission accepted that allowance should be made for a further sum of $200 paid by the casino by way of partial reimbursement for a flight on 6 April 1998. In addition, the casino records suggest that it met the cost of return flights on 20 and 30 May 1998. While it is not entirely clear, fairness dictates that Mr Oades' estimate of the cost of travel on those two occasions should be deducted from the respondent's expenditure. 21 Otherwise, I accept the figures set out in the schedule to Mr Oades' affidavit. To those there must be added an estimate of the respondent's ordinary living expenses. There is no such figure in Mr Oades' schedule but he provided Household Expenditure Surveys issued by the Australian Bureau of Statistics over the relevant period. On the basis of that material, senior counsel for the Commission proposed an estimate over the six year period based upon a conservative figure of $150 per week, yielding a total of $46,800. Counsel for the respondent made no submission to the contrary, and this also appears to be an acceptable figure. 22 I would ask the parties' legal representatives to undertake the necessary calculations and I shall make a proceeds assessment order in the amount arrived at. If necessary, I shall also hear argument on costs. ********** Last Modified: 11/17/2003 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.